Brody Mining, LLC v. Secretary of Labor; Secretary of Labor v. Brody Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA placed Brody Mine No. 1 on a pattern of violations based on 54 citations and orders involving escapeway, roof and rib, ventilation, and methane hazards. Judge William B. Moran dismissed the pattern charge because the Secretary would not identify before the hearing what connected the alleged violations into a pattern or what showing would defeat the charge. He held that waiting until after the individual S&S rulings to announce the pattern theory denied Brody fair notice and a meaningful opportunity to defend itself. The Judge separately decided the underlying citations and orders, with results that included affirmed S&S violations, modifications to non-S&S, settlements, and individual civil penalties. The Commission later vacated the pattern dismissal, restored affected withdrawal orders, and remanded for further proceedings because it found dismissal premature without a developed record of prejudice.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(e); 30 C.F.R. § 104.2
• Outcome: The ALJ dismissed the pattern charge and separately affirmed, modified, or approved settlements of the underlying citations and orders; the Commission later vacated the pattern dismissal and remanded.
• Subsequent review: The Commission's review is published as weva-2014-82-r-commission.
• Key point: The ALJ held that the Secretary had to disclose the theory connecting alleged violations into a pattern before the hearing, but the Commission later rejected dismissal on the record then presented.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9933

FAX: 202-434-9949

November 3, 2014

BRODY
MINING, LLC,                                    :     CONTEST PROCEEDINGS

Contestant,                        :

:     Docket
No. WEVA 2014-82-R[1]

v.                                                   :     Order
No. 9003242; 10/28/2013

:    

:     Docket
No. WEVA 2014-83-R

: 
 Order No. 7166788; 10/28/2013

:

:     Docket
No. WEVA 2014-86-R

SECRETARY
OF LABOR,                                :     Order No. 4208892; 10/29/2013

MINE
SAFETY AND HEALTH                       :

ADMINISTRATION
(MSHA),                         :     Docket No. WEVA 2014-87-R

Respondent.                                          :     Order No. 4208893;
10/29/2013

:

:
    Docket No. WEVA 2014-97-R

:     Order
No. 7166790; 11/04/2013

:

:     Docket
No. WEVA 2014-151-R

:     Order
No. 9003246; 11/07/2013

:

:     Docket
No. WEVA 2014-161-R

:     Order
No. 9004638; 11/12/2013

:

:     Docket
No. WEVA 2014-190-R

:     Order
No. 4208898; 11/14/2013

:

:     Docket
No. WEVA 2014-191-R

:     Order
No. 7166793; 11/18/2013

:

:     Docket
No. WEVA 2014-192-R

:     Order
No. 4208899; 11/19/2013

:

:     Docket
No. WEVA 2014-193-R

:     Order
No. 9005720; 11/20/2013

:

:     Docket
No. WEVA 2014-221-R

:     Order
No. 8155306; 11/26/2013

:

:     Docket
No. WEVA 2014-244-R

:     Order
No. 9005722; 12/03/2013

:

:     Docket
No. WEVA 2014-284-R

:     Order
No. 8154092; 12/05/2013

:

:     Docket
No. WEVA 2014-285-R

:     Order
No. 7166798; 12/09/2013

:

:     Docket
No. WEVA 2014-447-R

:     Order
No. 7166805; 01/15/2014

:

:     Docket
No. WEVA 2014-448-R

:     Order
No. 7166806; 01/15/2014

:

:     Docket
No. WEVA 2014-449-R

:     Order
No. 7166807; 01/15/2014

:

:     Docket
No. WEVA 2014-450-R

:     Order
No. 7166808; 01/15/2014

:

:     Docket
No. WEVA 2014-451-R

:     Order
No. 8154104; 01/15/2014

:

:     Docket
No. WEVA 2014-452-R

:     Order
No. 9005729; 01/13/2014

:

:     Docket
No. WEVA 2014-453-R

:     Order
No. 9005731; 01/13/2014

:

:     Docket
No. WEVA 2014-454-R

:     Order
No. 9005732; 01/14/2014

:

:     Docket
No. WEVA 2014-455-R

:     Order
No. 9005733; 01/14/2014

:

:     Docket
No. WEVA 2014-456-R

:     Order
No. 9005735; 01/15/2014

:

:     Docket
No. WEVA 2014-457-R

:     Order
No. 9005736; 01/15/2014

:

:     Docket
No. WEVA 2014-479-R

:     Order
No. 7166815; 01/23/2014

:

:     Docket
No. WEVA 2014-480-R

:     Order
No. 7166816; 01/23/2014

:

:     Docket
No. WEVA 2014-529-R

:     Order
No. 7166817; 01/27/2014

:

:     Docket
No. WEVA 2014-530-R

:     Order
No. 9005739; 01/27/2014

:

: 
 Docket No. WEVA 2014-531-R

: 
 Order No. 9005747; 02/10/2014

:

:     Docket
No. WEVA 2014-537-R

:     Order
No. 9007544; 02/04/2014

: 

: 
 Docket No. WEVA 2014-539-R

: 
 Order No. 7166822; 01/28/2014

: 

: 
 Docket No. WEVA 2014-561-R

: 
 Order No. 9005740; 01/27/2014

: 

: 
 Docket No. WEVA 2014-562-R

: 
 Order No. 9005742; 01/29/2014

: 

: 
 Docket No. WEVA 2014-563-R

: 
 Order No. 7166826; 02/04/2014

: 

: 
 Docket No. WEVA 2014-570-R

: 
 Order No. 9005750; 02/19/2014

: 

: 
 Docket No. WEVA 2014-571-R

: 
 Order No. 7166824; 01/29/2014

: 

: 
 Docket No. WEVA 2014-572-R

: 
 Order No. 9005741; 01/29/2014

: 

: 
 Docket No. WEVA 2014-593-R

: 
 Order No. 9005753; 02/20/2014

:

: 
 Docket No. WEVA 2014-594-R

: 
 Order No. 7166831; 02/11/2014

: 

: 
 Docket No. WEVA 2014-638-R

: 
 Order No. 9005754; 02/24/2014

: 

: 
 Docket No. WEVA 2014-639-R

: 
 Order No. 9005762; 03/04/2014

: 

: 
 Docket No. WEVA 2014-640-R

: 
 Order No. 9003274; 03/04/2014

: 

: 
 Docket No. WEVA 2014-641-R

: 
 Order No. 9005763; 03/04/2014

: 

: 
 Docket No. WEVA 2014-672-R

: 
 Order No. 9005758; 02/25/2014

: 

: 
 Docket No. WEVA 2014-673-R

: 
 Order No. 9005756; 02/25/2014

: 

: 
 Docket No. WEVA 2014-674-R

: 
 Order No. 7166838; 02/24/2014

: 

: 
 Docket No. WEVA 2014-675-R

: 
 Order No. 7166839; 02/24/2014

: 

: 
 Docket No. WEVA 2014-676-R

: 
 Order No. 8166840; 02/24/2014

: 

: 
 Docket No. WEVA 2014-678-R

: 
 Order No. 7166837; 02/24/2014

: 

: 
 Docket No. WEVA 2014-679-R

: 
 Order No. 9005755; 02/24/2014

: 

: 
 Docket No. WEVA 2014-680-R

: 
 Order No. 9005757; 02/25/2014

: 

: 
 Docket No. WEVA 2014-681-R

: 
 Order No. 9005759; 02/25/2014

:

: 
 Docket No. WEVA 2014-715-R

: 
 Order No. 8135796; 03/11/2014

: 

: 
 Docket No. WEVA 2014-716-R

: 
 Order No. 8135797; 03/12/2014

: 

: 
 Docket No. WEVA 2014-717-R

: 
 Order No. 9001091; 03/11/2014

: 

: 
 Docket No. WEVA 2014-718-R

: 
 Order No. 9001095; 03/19/2014

: 

: 
 Docket No. WEVA 2014-719-R

: 
 Order No. 9001096; 03/11/2014

: 

: 
 Docket No. WEVA 2014-720-R

: 
 Order No. 9005764; 03/05/2014

: 

: 
 Docket No. WEVA 2014-722-R

: 
 Order No. 9007123; 03/23/2014

: 

: 
 Docket No. WEVA 2014-745-R

: 
 Order No. 9969627; 03/24/2014

: 

: 
 Docket No. WEVA 2014-804-R

: 
 Order No. 9005343; 04/03/2014

: 

: 
 Docket No. WEVA 2014-805-R

: 
 Order No. 9005768; 04/03/2014

: 

: 
 Docket No. WEVA 2014-806-R

: 
 Order No. 9005769; 04/07/2014

: 

: 
 Docket No. WEVA 2014-807-R

: 
 Order No. 9005770; 04/07/2014

: 

: 
 Docket No. WEVA 2014-811-R

: 
 Order No. 9005344; 04/09/2014

: 

: 
 Docket No. WEVA 2014-813-R

: 
 Order No. 9005772; 04/09/2014

:  

: 
 Docket No. WEVA 2014-814-R

: 
 Order No. 9005773; 04/09/2014

: 

: 
 Docket No. WEVA 2014-819-R

: 
 Order No. 9005774; 04/15/2014

: 

: 
 Docket No. WEVA 2014-854-R

:
  Order No. 9005778; 04/21/2014

: 

: 
 Docket No. WEVA 2014-855-R

: 
 Order No. 9005779; 04/22/2014

: 

: 
 Docket No. WEVA 2014-856-R

: 
 Order No. 9005780; 04/22/2014

: 

: 
 Docket No. WEVA 2014-909-R

: 
 Order No. 9005347; 05/01/2014

: 

: 
 Docket No. WEVA 2014-974-R

: 
 Order No. 9005349; 05/13/2014

: 

: 
 Docket No. WEVA 2014-975-R

: 
 Order No. 9005350; 05/13/2014

: 

: 
 Docket No. WEVA 2014-976-R

: 
 Order No. 9007426; 05/13/2014

:

:     Docket
No. WEVA 2014-1012-R

:     Order
No. 9005786; 05/29/2014

:

:     Docket
No. WEVA 2014-1013-R

:     Order
No. 9005787; 05/29/2014

:

: 
 Docket No. WEVA 2014-1035-R

: 
 Citation No. 9005792; 06/12/2014

:

: 
 Docket No. WEVA 2014-1036-R

: 
 Citation No. 9005362; 06/11/2014

:

: 
 Docket No. WEVA 2014-1037-R

: 
 Citation No. 9005360; 06/04/2014

:

: 
 Docket No. WEVA 2014-1038-R

: 
 Citation No. 9005361; 06/11/2014

:

:     Docket
No. WEVA 2014-1135-R

:     Order
No. 9905374; 07/15/2014

:

:       Docket No. WEVA
2014-1138-R

:     Order
No. 9005376; 07/16/2014

:

:       Docket No. WEVA
2014-1157-R

:     Order
No. 9009660; 07/22/2014

:

: 
 Docket No. WEVA 2014-1993-R

: 
 Order No. 9005384; 07/30/2014

:

: 
 Docket No. WEVA 2014-1994-R

: 
 Order No. 9005383; 07/30/2014

:

: 
 Docket No. WEVA 2014-1995-R

: 
 Order No. 9005382; 07/30/2014

:

: 
 Docket No. WEVA 2014-1996-R

: 
 Order No. 9005380; 07/30/2014

:

:       Docket No. WEVA
2014-2172-R

:     Order
No. 9003948; 09/08/2014

:

: 
 Docket No. WEVA 2014-2173-R

: 
 Order No. 9005393; 09/09/2014

:

: 
 Docket No. WEVA 2014-2174-R

: 
 Order No. 9005398; 09/10/2014

:

: 
 Docket No. WEVA 2014-2175-R

: 
 Order No. 9005400; 09/10/2014

:

:       Docket No. WEVA
2014-2221-R

:     Order
No. 9007439; 09/17/2014

:

:     Docket
No. WEVA 2015-59-R

:     Order
No. 7272454; 10/07/2014

:

:     Docket
No. WEVA 2015-60-R

:     Order
No. 7272462; 10/07/2014

:

:     Docket
No. WEVA 2015-61-R

:     Order
No. 7272494; 10/07/2014

:

:     Docket
No. WEVA 2015-63-R

:     Order
No. 9005704; 10/14/2014

:

:     Docket
No. WEVA 2015-66-R

:     Order
No. 9005705; 10/14/2014

:

:     Docket
No. WEVA 2015-67-R

:     Order
No. 9006768; 10/14/2014

:

:     Docket
No. WEVA 2015-68-R

:     Order
No. 9006769; 10/14/2014

:

:     Docket
No. WEVA 2015-121-R

:     Order
No. 7219154; 10/24/2014

:

:     Mine:
Brody Mine No. 1

:     Mine
ID: 46-09086

:

:

SECRETARY
OF LABOR,                                :     CIVIL PENALTY PROCEEDINGS

MINE
SAFETY AND HEALTH                        :

ADMINISTRATION
(MSHA),                          :     Docket No. WEVA 2013-370

Petitioner,                          :     A.C.
No. 46-09086-308309

:

v.                                                   : 
 Docket No. WEVA 2013-564

: 
 A.C. No. 46-09086-310927

: 

: 
 Docket No. WEVA 2013-997

: 
 A.C. No. 46-09086-321030

: 

: 
 Docket No. WEVA 2013-1055

: 
 A.C. No. 46-09086-323691

: 

: 
 Docket No. WEVA 2013-1189

: 
 A.C. No. 46-09086-326531

: 

: 
 Docket No. WEVA 2013-619

: 
 A.C. No. 46-09086-342759

: 

: 
 Docket No. WEVA 2013-620

: 
 A.C. No. 46-09086-342759

: 

: 
 Docket No. WEVA 2014-702

: 
 A.C. No. 46-09086-344708

: 

: 
 Docket No. WEVA 2014-842

: 
 A.C. No. 46-09086-347271     

BRODY
MINING, LLC,                                    :   

Respondent.                      : 
 Mine: Brody Mine No. 1

ORDER DISMISSING
PATTERN CHARGES

Appearances:               Robert S. Wilson, Esq.,
Office of the Solicitor, U.S. Department of Labor, Arlington, VA, for the
Secretary

Lauren Marino,
Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, VA, for the
Secretary

Dana Ferguson,
Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, VA, for the
Secretary

Jason Grover,
Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, VA, for the
Secretary

Ronald Gurka,
Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, VA, for the
Secretary

Michael T.
Cimino, Esq., Jackson Kelly, PLLC, Charleston, WV, for Brody Mining, LLC

R. Henry Moore,
Esq., Jackson Kelly, PLLC, Pittsburgh, PA, for Brody Mining, LLC

Benjamin M.
McFarland, Esq., Jackson Kelly, PLLC, Wheeling, WV, for Brody Mining, LLC

K. Brad Oakley,
Esq., Jackson Kelly PLLC, Lexington, KY, for Brody Mining, LLC

Adam J.
Schwendeman, Esq., Jackson Kelly PLLC, Charleston, WV, for Brody Mining, LLC

Before:                                    Judge
William B. Moran

ORDER
DISMISSING THE PATTERN CHARGE AS VIOLATIVE OF DUE PROCESS

Introduction  

Imagine, if you will, a contest of any
sort. It could be a board game or a card game or, as in this instance, a
contest to determine if a pattern of violations exists. One would expect that, before
beginning such a contest, the rules would be announced in advance; a flush in a
poker game, for example, being established as all five cards being of the same
suit, or in a board game, a requirement of owning all the properties on a given
street before installing houses. But what if the rules were announced only
after the game had been played, after the hand had been played so to speak, and
that one party then announced the basis for a winning hand? Perhaps a two or
three, not an Ace, King or Queen, was anointed as the superior card, a
determination made by the one then announcing the rules and according to the
hand that player then had. For most people, one would hope, such a contest
would seem patently unfair, almost rigged.  

In the field of law, one could assert
that such an arrangement violates procedural due process, lacking fundamental
fairness. Yet, for the reasons which follow, in this Court’s view the Secretary
of Labor’s procedure for charging a mine operator with a pattern of violations
smacks of such after-the-fact rules. Here, not only does the Secretary’s
elaborate and lengthy regulation, involving a pattern notice, fail to identify
what constitutes a pattern, even after the pattern notice was issued and the
litigation challenging that notice instituted, the Secretary still did not
identify, beyond general and vague statements, the basis for his pattern claim.
Despite the Court’s requirement that the Secretary identify the basis for this
claim before the hearing commenced, it declined to do so. Like the unfair card
game, the Secretary advised that he would be announcing the “rules,” not simply
after the hearings were concluded, but that he would also wait until after the
Court made its determinations as to which of the litigated citations and orders
were found to have the significant and substantial finding associated with
them. Only then, knowing which violations were identified as “significant and
substantial” would the Secretary then announce the basis for his claim of a
pattern of violations. Such rules are antithetical to procedural due process.

The
Pattern of Violations Provisions

The Mine Act, at
30 U.S.C. § 814(e), provides:

If an operator
has a pattern of violations of mandatory health or safety standards in the coal
or other mine which are of such nature as could have significantly and
substantially contributed to the cause and effect of coal or other mine health
or safety hazards, he shall be given written notice that such pattern exists.
If, upon any inspection within 90 days after the issuance of such notice, an
authorized representative of the Secretary finds any violation of a mandatory
health or safety standard which could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health
hazard, the authorized representative shall issue an order requiring the
operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (c) of this section, to be withdrawn
from, and to be prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation has been abated.

The Pattern of
Violations regulations applicable to this litigation were issued as a final
rule on January 23, 2013, with an effective date of March 25, 2013. Pattern of Violations,
78 Fed. Reg. 5056 (Jan. 23, 2013). The present version replaced an earlier
regulatory version, issued in 1990, addressing the subject of patterns. The
process of creating that earlier version began in 1980, and, a decade later, on
July 31, 1990, a final rule was issued. Pattern of Violations, 55 Fed. Reg.
31,128 (July 31, 1990). Thus, from the time of enactment of the Mine Act, it
took more than 12 years for the first regulation addressing a pattern of
violations to be issued and then more than another 22 years for the latest
iteration.

The
present Pattern of Violations regulation contains 20,108 words, but only 628 of
those are devoted to the text of the rule itself and only 182 of those speak to
the “Pattern criteria.”[2]
While seven criteria are listed, none of them define what constitutes a
pattern, nor does any other provision in the rule provide such a definition. Instead,
the provision sets out the types of enforcement actions that will be included
in the pattern criteria.

Background
of this litigation

Brody
was issued a pattern of violations notice. Thereafter, upon Brody’s challenge
to the Pattern regulations, an administrative law judge upheld the facial
validity of those rules, and the Commission, on interlocutory appeal, affirmed
that ruling, in a decision issued on August 28, 2014. Brody Mining, LLC,
36 FMSHRC 2027 (Aug. 28, 2014). Following the Commission’s decision, the
posture of the case before this Court was to determine if a pattern of
violations had been established and, integral to that determination, which
citations/orders, among the 54 constituting the basis for the pattern of
violations notice, were established as violations and, among those, which were
also shown to significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard. The Court analogized
the distinction between the decision made by the Commission and the present
posture of this litigation as comparable to the indictment phase and a trial
phase, with the Commission having concluded that the pattern regulation passed
facial validity but that at the trial phase it was now time for the Secretary
to establish that a pattern of violations existed.   To achieve this, the Court
determined that MSHA would need to identify the basis for its claim that the 54
citations/orders formed a pattern of violations and then establish that those
matters were violations and that they had the “significant and substantial,” or
“S&S,” aspect to them.

Consistent
with this evidentiary burden upon the Secretary, the Court directed that,   prehearing,
the Secretary was to set forth the basis for its contention that those
violations created a pattern of violations. This direction was brought about by
Brody’s filing of a Motion in Limine prior to the hearing concerning the
Secretary’s definition of a pattern. In that motion, Brody sought to compel the
Secretary to identify: (1) what constituted a pattern violations; (2) what
number of S&S designations Brody had to prevail upon to defeat the pattern
of violations designation; and (3) how the grouping of citations in the pattern
notice constituted a pattern of violations. The Court agreed that each of these
were reasonable and necessary inquiries, essential for a Respondent to be able
to defend against the charge.

Other than expressing generalities about
patterns, however, the Secretary failed to set forth the basis for his charge. As
noted by Brody, the Secretary only relied upon the same dictionary definition
and case law concerning sex crimes and Racketeer Influenced and Corrupt
Organizations Act (“RICO”) violations (18 U.S.C. §§ 1961–1968), asserting that
the determination of whether there exists a pattern of violations at Brody can
only be resolved by the administrative law judge following the admission of
evidence and determination of whether violations were S&S.[3] Brody’s Mem. of Law in
Supp. Of Vacating the Notice of a Pattern of Violations at 6 [hereinafter Brody
Memorandum] (citing Sec’y’s Resp. to Contestant’s Mot. in Limine Concerning
Definition of a Pattern at 3).

As a consequence of the Secretary’s
failure to comply with the Court’s direction, the Court announced that it would
be dismissing the pattern notice.[4]
At the hearing which ensued, the Court elaborated on its reasoning, explaining
that its dismissal of the pattern notice rested  on two grounds: the
Secretary’s process is inconsistent with procedural due process, and it is also
inconsistent with the expeditious resolution of pattern matters. The Court added
that one could also view the Mine Act’s legislative history as requiring, as an
element that the Secretary has to prove for pattern charges, that the other
enforcement mechanisms under the Mine Act have been insufficient to deal with
the mine’s safety and health issues. Tr. 649-650.

Thus, the Court expressed that, on
procedural due process grounds, it was an obligation on the Secretary’s part to
identify, in advance of the hearing,[5]
the road map explaining the basis for his claim that the mine has shown a
pattern of violations. The Court stated that the Secretary’s approach of
essentially putting it in the lap of the Commission to determine, on a
case-by-case basis and over a period of years, the grounds for a pattern would
also be inconsistent with an expeditious resolution of the matter. Tr. 345.

Brody’s
contentions regarding dismissal of the pattern notice

Brody submitted a Memorandum of Law in
support of vacating the notice of a pattern of violations.  Preliminarily,
Brody notes that on August 28, 2014, the Commission issued its decision on the
interlocutory appeal in this matter but that it did not directly address the
issue of what constitutes a pattern of violations. Brody Mem. at 3. It observes
that the regulations promulgated by MSHA do not define what constitutes a
pattern of violations. Id. Instead,

Section 104.2
[of those regulations] only sets out the types of enforcement actions that will
be included in MSHA’s website criteria, not the criteria used to place
Brody or any operator on a POV, according to the Secretary. The criteria that
MSHA used to place Brody on a pattern of violations are, according to the
Secretary, only a “general statement [of] policy.” If that is the case (which
Brody does not concede), the Secretary does not identify any criteria that can
be construed as an interpretation of “pattern of violations.”

Id. at 3-4 (citing Brody,
36 FMSHRC at 2062 n.8 (Althen, Comm’r, dissenting)).

“From the very beginning, Brody has
sought in this matter to get the Secretary to identify in what way the 54
citations constitute a pattern and how many Brody must successfully defend in
order to prevail.” Id. at 5. It states that, “[b]efore the Commission,
the Secretary again asserted that according to the agency, there is no specific
number that it has to prove.” Id. (citing Comm’n Oral Argument Tr. 57). “Rather,
the Secretary pointed to the general definition of ‘pattern’ in Black’s Law
Dictionary. The Secretary asserted that as few as two citations may
constitute a pattern.” Id. (citing Comm’n Oral Argument Tr. 75; 36
FMSHRC at 2061 n.7 (Althen, Comm’r, dissenting)).  “In a less than specific
comment at oral argument, the Secretary said that Brody could litigate the 54
citations, without explanation as to how Brody could defend itself against the
allegation of a pattern.” Id. at 5-6 (citing Comm’n Oral Argument Tr.
73). “The Secretary also asserted that he has defined pattern as a ‘mode of
behavior or series of acts that are recognizably consistent.’” Id. at 6
(quoting 36 FMSHRC at 2061 (Althen, Comm’r, dissenting)). That vague
“definition,” Brody observes, “fails to explain how the 54 citations at issue
then evidence a pattern.” Id. As noted above, Brody also observes that
the Secretary “relied upon the same dictionary definition and case law
concerning sex crimes and RICO violations and asserted that the determination
of whether there exists a pattern of violations at Brody ‘can only be resolved
by the administrative law judge following the admission of evidence’ and
determination of whether violations were S&S.” Id. (quoting Sec’y’s
Resp. to Mot. in Limine at 3).

“Instead
of explaining how the current citations in the POV notice constitutes a pattern
or giving any indication of how many citations Brody had to defeat,” Brody
further notes in its Memorandum, “the Secretary asserted that pattern
determinations needed to be made on a case-by-case basis once the ALJ made a
determination of whether the S&S allegations were valid:

Now, that
recognizes that, even though the Secretary is charging one group of violations
as establishing a pattern, what may be left after adjudication may be a
different group of violations. And we are not going to know that until after
you hear the evidence and you rule on those citations. So I can’t tell you a
precise number of violations that is going to establish a pattern.”

Id. at 7-8 (quoting
Tr. 55).

Given the foregoing, Brody notes that
“[t]he Secretary apparently believes that once the administrative law judge
makes his S&S decisions, then the Secretary will decide in what way
that constitutes a pattern, possibly after additional briefing.” Brody Mem. at
8 (emphasis added). In that regard, Brody observes that “the Secretary even
asked that the hearing be bifurcated to that effect.” Id.

Under such an arrangement, Brody asserts
that the Secretary’s failure to define a pattern in this case precludes it from
presenting a defense. Id. According to the Secretary’s approach, Brody
cannot be informed of the basis for the pattern charge, and therefore the
defense it must muster against it, until after the hearing. Id.

As a general proposition Brody maintains
that the administrative law judge has the authority to vacate or dismiss the
pattern of violations notice. Id. It notes that, under Rules 53 and 55
of the Commission’s Rules of Procedure, the judge has the authority to require
the Secretary to provide the information sought here, and if not provided, the
power to vacate the pattern notice. Id. In addition, under Federal Rule
of Civil Procedure 41(b), also applicable under the Commission Rules, dismissal
(in this case vacating) is available if a party fails to comply with an order
of the ALJ, as the Secretary has done here. Id. at 8-9; see Marfork
Coal Co., Inc., 29 FMSHRC 626, 634 (Aug. 2007) (affirming the principle
that judge’s possess the authority to order dismissals).

Brody
also maintains that the failure to provide a definition of a pattern of
violations is contrary to law. Brody Mem. at 9. In this regard it asserts that
“even in issuing the pattern notice, the Secretary did not actually have a
clear concept of what constituted a pattern in this case. Otherwise, the
Secretary would have set it out long ago.” Id. Nonetheless, the agency
is obligated to act in accordance with “ascertainable standards.” Id.
(citing Morton v. Ruiz, 415 U.S. 199 (1974); Patchogue Nursing Ctr.
v. Bowen, 797 F.2d 1137, 1143 (2d Cir. 1986); White v. Roughton, 530
F.2d 750 (7th Cir. 1976); Holmes v. N.Y.C. Hous. Auth., 398 F.2d 262,
265 (2d Cir. 1968); Burke v. U.S. Dep’t of Justice, 968 F. Supp. 672,
681 (M.D. Ala. 1997)).

As the foregoing illustrates, “the
Secretary does not have a definition of a pattern of violations and instead is
relying solely on the ALJ to make a determination.” Brody Mem. at 10.  However,
it is important to note that “[t]he issue here is not some evaluation of a
single citation or order, but [rather] an evaluation of how a group of
citations fit together, in the context of the Act’s enforcement scheme and in
recognition of the purpose of Section 104(e) to serve as an enforcement tool
when other tools have failed.” Id. In these special enforcement
circumstances Brody submits that “something more is needed than what the
Secretary has offered.”[6]
Id.

Brody also notes that “Section 5 of the
Administrative Procedure Act, 5 U.S.C. § 554 provides that ‘[p]ersons entitled
to notice of any agency hearing shall be timely informed of . . . the matters
of fact and law asserted.’” Brody Mem. at 11. As the Court of Appeals stated in
Bendix Corp v. FTC, 450 F.2d 534, 542 (6th Cir. 1971), “an
administrative agency must give clear statement of the theory on which a case
will be tried.” In this case, Brody asserts,

the theory of
the case includes an explanation of what constitutes a pattern and how the
remaining 40 citations meet that definition. It is basic to any hearing for
Brody to have such information and the lack of it supports vacation of the
pattern of violations notice. Brody does not know what evidence to present
concerning a pattern of violations in its defense. It does not even know the
basic information of how the Secretary believes the 40 remaining citations
constitute a pattern.

Brody Mem. at 12.

As an independent basis, Brody contends
that as an operator under the Mine Act,

[w]here the
imposition of sanctions is at issue in a proceeding brought by an enforcing
administrative agency, the due process clause of the United States Constitution
requires that the regulation sought to be enforced give fair warning to Brody
of the conduct it prohibits or requires. If it does not, it is unenforceable.

Id. (citing Indus.
Co. of Wyo., 12 FMSHRC 2463, 2471 (Nov. 1990) (ALJ) (citing United
States v. L. Cohen Grocery Co., 255 U.S. 81 (1921))). “It is a basic
principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Id. (quoting Grayned v. City
of Rockford, 408 U.S. 104, 108 (1972)). Under these precepts, the
Secretary’s failure to state what about this grouping of citations constitutes
a pattern of violations cognizable under the Act “is contrary to the basic principles
of fundamental fairness.” Id. at 13 (citing In re Conn. Yankee Power
Co., No. 50-213-OLA, 2003 WL 21314058 (Atomic Safety and Licensing Board
Panel, Nuclear Regulatory Commission, May 20, 2003); U.S. Procter &
Gamble Co., 356 U.S. 677, 682 (1958)). Thus, Brody asserts that the failure
to define a pattern deprives it of due process.

The Secretary has taken the position
that such reliance is mitigated by the fact that an operator will have
available expedited review of the POV notice upon a contest of the initial
Section 104(e) order by an inspector. But this assertion does not square with
fundamental fairness, because the process envisioned by the Secretary is a
months’ (if not years) long process, considering the likelihood of appeals. Brody
Mem. at 13. Therefore,

it hardly
constitutes an ‘expedited’ process to resolve the issues raised by the pattern
of violations notice in this fashion. Moreover, it places Brody in a position
that it cannot know what evidence, other than the basic defenses to each
citation, to counter whatever arguments the Secretary might come up with after
he knows which of the 40 remaining citations are designated S&S by the ALJ
(and which end up so designated after an appeal process).

Id. at 13-14.

Brody also makes the point that it is
not simply about the right to a hearing, such hearing must be meaningful as
well. In this regard it observes that “the fundamental requirement of due
process is the opportunity to be heard at a meaningful time in a meaningful
manner.” Id. at 15 (emphasis omitted) (quoting Mathews v. Eldridge,
424 U.S. 319, 333 (1976)) (internal quotation marks omitted). “The fundamental
right to notice and a meaningful hearing at a meaningful time has been
recognized in various scenarios.” Id. (citing James Daniel Good Real
Prop., 510 U.S. 43 (1993) (seizure of real property under federal
forfeiture law)).[7]
Accordingly, Brody seeks to have the pattern of violations notice vacated.

Further
Discussion

The Commission has affirmed the
principle that “[b]efore a civil penalty may be imposed, due process considerations
preclude the adoption of an agency’s interpretation which ‘fails to give fair
warning of the conduct it prohibits or requires.’” LaFarge N. Am., 35
FMSHRC 3497, 3500 (Dec. 2013) (quoting Gates & Fox Co. v. OSHRC, 790
F.2d 154, 156 (D.C. Cir. 1986)). It has also observed that “a statute or
standard . . . cannot be ‘so incomplete, vague, indefinite or uncertain that
men of common intelligence must necessarily guess at its meaning and differ as
to its application.’” Ala. By-Products Corp., 4 FMSHRC 2128, 2129 (Dec.
1982) (quoting Connolly v. Gerald Constr. Co., 269 U.S. 385, 391
(1926)).

Here, the Secretary has failed to define
what constitutes a “pattern” of violations. From his response to Brody’s Motion
to Compel, the Secretary only offered that a pattern can be as little as two
violations that are, in some way, related. As the Supreme Court stated in Martin
v. OSHRC, 499 U.S. 144, 158 (1991), “the decision to use a citation as the
initial means for announcing a particular interpretation may bear on the
adequacy of notice to regulated parties.” So, too, the D.C. Circuit has given
guidance on how to approach situations where an agency provides no
pre-enforcement warning. An agency provides adequate notice in such a situation
when, whether “by reviewing the regulations and other public statements issued
by the agency, a regulated party acting in good faith would be able to
identify, with ‘ascertainable certainty,’ the standards with which the agency
expects parties to conform.”[8]
Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995).

In this case, the Secretary has provided
only the broadest possible hint of what constitutes a pattern of violations,
and even at that, his offering is one which is partially incompatible with the
legislative history insofar as that history suggests that § 104(e) pattern
notices are to be reserved as a last resort against mine operators, when other
enforcement mechanisms under the Mine Act have failed.

Though given several opportunities to
explain the basis for his pattern of violation charges, an opportunity extended
even up to the start of the hearings, the Secretary remained steadfast in its
stance that it did not have to comply with the Court’s instructions. Further,
even at the conclusion of the hearing, a point in time this Court considered to
be too late in any event, the Secretary still asserted that he would wait until
the Court issued its rulings on the disputed S&S citations/orders and only
then would it announce the basis for its claim of a pattern of violations. This
approach is, at bottom, no different than the card or board game analogy made
at that outset of this Order, with a predestined outcome.

Yet, inconsistent with his stated
position, at times during the hearing the Secretary would suddenly announce
that one thing or another was a “pattern,” but again without a definition or
explanation attached to the claim. The Secretary apparently believed that
announcing the conclusion that something is a pattern is equivalent to defining
it. A few examples highlight this misconception of the Secretary’s due process
obligations. At one point, spontaneously, on the second day of the first week
of the hearings, Counsel for the Secretary asserted, “There’s a pattern there.”
Tr. 372. The Court noted that “you could have identified it before the hearing
began.” Counsel for the Secretary replied, “I thought we did.” Tr. 372. Further,
the Court would note that announcing a conclusion that some thing or
other is a pattern does not establish such a claim.

At
another point during the same week, perhaps sensing the deficiency in its
approach, the Secretary made an attempt to introduce notes from a settled
citation, for the purpose, as stated by Counsel for the Secretary, of
establishing a pattern. See Tr. 691-693. The Court noted that such
claims should have been cited in advance of this hearing as part of its basis
for the contention that a pattern was present. Tr. 691-692. The Court observed
that the respondent is put at a due process disadvantage in not knowing of such
a claim in advance. Tr. 692. Importantly, the Court added that, at this point
in time, with the hearing underway, it was too late to attempt to repair the
due process deficiencies. Tr. 692. It added that the “last stop,” so to speak,
for that train to have established the basis for the Secretary's theory that
there's a pattern, was passed at the beginning of the hearings on Tuesday
morning. Tr. 692. By not setting forth the basis for its claim of a pattern of
violations, Brody was put at a great disadvantage to defend itself from that
charge. Not being forearmed with the knowledge of the theory of the Secretary's
pattern of violations, facing the unknown as it were, Brody could not know how
to defend itself. It could not, for example, anticipate nor ask questions
during the hearing if it has not been informed of the basis for the alleged
pattern. In fact, under the Secretary’s approach, Brody would not know of the
grounds for the pattern charge until after the Court made its findings
as to which of the citations/orders were affirmed and among those, which were
significant and substantial.

The
Court’s explanation did not deter the Secretary, when in the mood, from lifting
the curtain and continuing to make the claim, but only as a conclusion
without explanation, that it had demonstrated a pattern. As counsel for the
Secretary stated at the conclusion of the first week of the hearing:

[The Secretary]
would, for the record, . . . just state that we’ve now heard—we’ve heard testimony
on 12 violations. There were three others that were submitted and stipulated to
as S&S. That makes 15 possible significant and substantial citations. [The
Secretary] believe[s] that the 12, including the one [the Court] already
announced [its] decision on, were properly designated as S&S.  [The
Secretary] believe[s] that those 15 violations establish a pattern of
violations of these cit[ations] and standards, and [the Secretary] would assert
that, based on that alone, the notice of the pattern of violation should be
affirmed.

Tr.
814-15. Apparently, the Secretary believes that merely announcing, after
the evidence has been presented at a hearing for some citations, even in
advance of findings of the significant and substantial element for those by the
Court, is sufficient to meet its burden. The Court does not agree.

A last point needs to be made about the
pattern of violations charge. The Court is aware that legitimate pressure was
placed upon the Secretary to arise from its slumber and utilize the pattern
provision after its virtual quietude of some 35 years. However, this can be
viewed from another perspective, too. Given that it took MSHA and the Secretary
12 years following the enactment of the Federal Mine Safety & Health Act of
1977 to develop its first effort to produce a regulation addressing a pattern
of significant and substantial violations and another 22 years to produce an
iteration of a pattern of violations, now 35 years in all, it can hardly be
argued that there is now a rush to implement this important provision apart
from fairness to those charged with such violations. In this Court’s estimation
it is more important that the process be fair, and consistent with the
principles of procedural due process.

Accordingly,
the Secretary’s Brody Pattern of Violations Claim is hereby DISMISSED.

FINDINGS OF FACT
AND LEGAL CONCLUSIONS RELATING TO THE UNDERLYING CITATIONS AND ORDERS
ASSOCIATED WITH THE

PATTERN CHARGE[9]

Before
addressing the individual matters litigated here, it is important to note the
long-established elements to demonstrate that an established violation is also
significant and substantial (“S&S”).

As recently noted in Secretary of
Labor, Mine Safety and Health Administration, (MSHA) v. Wolf Run Mining Company
2014 WL 4273427, August 19, 2014, “The S&S terminology is taken from
section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), and refers to more
serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature. See Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In
Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained:

In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard - that is, a measure of danger to safety - contributed
to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.  . . . Under the Commission's Mathies
test, it is the contribution of the violation at issue to the cause and
effect of a hazard must be significant and substantial.” Id. at *2.

The
Secretary has conceded that the following citations, originally claimed to be
S&S, now are to have that designation deleted:

Citation
No. 7167412

Citation
No. 7167474

Citation
No. 9000309

Citation
No. 7167473

Citation
No. 8155925

Citation
No. 8155936

Citation
No. 8155926

Citation
No. 8155937

Citation
No. 9000282

Citation
No. 9002292

Citation
No. 8139621

Citation
No. 8125045

In
a similar, ostensibly coincidental, fashion, Brody Mining accepted the
following citations, as issued, including the S&S designation attached to
them:

Citation
No. 7165680

Citation
No. 9000305

Citation
No. 9000286

Citation
No. 8151320

Citation
No. 7168801

Citation
No. 7168899

Citation
No. 9000277

Citation
No. 9000278

Citation
No. 3577965

Citation
No. 3578036

Citation
No. 9000312

Citation
No. 9000311   

The alleged violations comprising the
Secretary’s pattern of violation charge were grouped into three categories: Twenty
(20) pertained to emergency preparedness and escapeway hazards; Nine (9)
involved conditions and/or practices contributing to roof and rib hazards; Eighteen
(18) of these pertained to Ventilation and/or Methane hazards. They are
discussed in that order.

I.                  
 Alleged
Escapeway/Emergency Preparedness Violations; Conditions and/or Practices contributing
to Escapeway/Emergency hazards

Before
addressing the particular citations/orders involving Emergency Preparedness and
Escapeway Hazards as they relate to S&S determinations, the Commission’s
decision in Cumberland Coal Resources, LP, 33 FMSHRC 2357 (Oct. 2011), aff’d
by the D.C. Circuit, 717 F.3d 1020 (D.C. Cir. 2013), needs to be mentioned. There,
beyond establishing the violation, the second Mathies element was
identified in the context of escapeways as the hazard of miners not being able
to escape quickly in an emergency with the related increased risk of injuries
due to such a delay. Under this second element the test is whether the
violation would contribute to the hazard of miners not being able to escape
quickly in an emergency. The S&S analysis in such matters must be evaluated
in the context of an emergency but also, with regard to the third Mathies element,
the test is whether there is a reasonable likelihood that the identified hazard
contributed to by the violation will cause injury, and not that the
violation itself will cause injury.

In
the D.C. Circuit’s affirmance of the Commission, that Court rejected the mine’s
argument that “the phrase ‘could significantly and substantially contribute,’
which calls to mind an evaluation of chance, properly accounts for all
probability variables in any given significant and substantial evaluation,
including the probability of an emergency occurring.” Id. at *1026.

Citation
8153617 from Docket No. WEVA 2013-370

Brody admitted to the fact of violation
for this, but contests the significant and substantial finding. Jack Hatfield,
MSHA Coal Mine Inspector, testified for the Secretary. Inspector Hatfield has
an extensive coal mining background, both in private mining and with MSHA.[10]
Brody employs the room and pillar mining method. Tr. 92. By stipulation, and
the Court considers this fact to be important for each of the alleged
violations, it is noted that the Brody mine liberates in excess of 1 million
cubic feet of methane for a 24 hour period. Stipulation No. 24. During the
period covered by the citations in this litigation, September 1, 2012 through
August 31, 2013, the mine was on a five day 103 spot inspection cycle. Id. Tr.

94. Gov. Exhibits 1A, 1B, 1C, and 54.

On
October 9, 2012, Inspector Hatfield, citing 30 C.F.R. §75.1504(a)(2), stated in
his section 104(a) citation that “[t]he foreman assigned by mine management to
supervise the working crew of the 5 Section Panel (008/011 MMU [“mechanized
mining unit” Tr. 202.] ) has not traveled the primary intake escapeway from the
section to the intake air shaft. During an interview with the foreman it is
determined that the foreman has partially traveled the escapeway but not to the
air shaft, the primary intake escapeway it’s [sic] entirety. In the event of an
emergency requiring escape from the section to the shaft, this condition would
contribute to the workers being led in a direction other than directly to the
intake air shaft.” Citation No. 8153617. The cited provision of the standard,
acknowledged by the Respondent as being violated here, succinctly provides:
“Prior to assuming duties on a section or outby work location, a foreman shall
travel both escapeways in their entirety.” It was during the course of his
inspection that day that the Inspector met Eddie Halstead, who was the section
boss on that [5] section. Tr. 102-103. Inspector Hatfield asked Mr. Halstead if
he had traveled his primary intake escapeway to the intake air shaft, and
Halstead admitted that he had not done that.

The Inspector considered the requirement
to be important because Halstead, “in his role as the supervisor over those
workers . . . [involved] two sections  . . . [and there are] two MMUs and
probably 13, 14 men. [Therefore, Hatfield] wanted to be sure that [Halstead]
knew how to get to that intake air shaft.” Tr. 104. Inspector Hatfield has had
experience “in smoke as a section boss. . . . [and has] been there when
everybody is hollering and screaming [at him].”  Tr. 104-105. Therefore, he has
learned firsthand that it is important to know that the foreman has traveled
the escapeway. The preamble to this standard notes this too, providing “[t]he
foreman is in a leadership position and, in the event of an emergency, is
entrusted with the responsibility for leading miners out of the mine safely. To
do this, the foreman must have the necessary skills, including complete
familiarity with both the primary and the alternate escapeways.” Tr. 106.

Inspector Hatfield seconded that
expression from that preamble, noting that the foreman will be “the man in
charge . . . the leader to get those workers outside and to [ ] safety.” Tr.

107. By traveling the escapeway, the foreman will establish landmarks in his
     mind, noting things such as overcast walls and cribs, and thereby making him
     familiar with it.  In order to get his men out, to travel the escapeway, the
     foreman must travel it. This knowledge is needed aforehand because of the
     emergency conditions themselves and because the situation may well be complicated
     by having injured workers. The foreman has other responsibilities at that time
     as well, such as insuring that those within his charge have properly donned
     their breathing apparatus.  A fire, explosion, water inundation and methane gas
     can all bring about the need to use the primary intake escapeway.

Hatfield then proceeded to identify on
Brody’s escapeway map, dated October 23, 2012, the Number 5 section, and that
the primary escapeway for this, which is in the Number 6 entry. He marked its location
on the exhibit. Aiding this, Inspector Hatfield, also marked the areas that the
foreman did not travel, a failure which brought about the issuance of
the citation. Six turns are required in traveling that escapeway route. Broadly
characterizing the shortcomings of the foreman, but not distorting it,
Inspector Hatfield summed up that the foreman had not traveled about
four-fifths of the escapeway.[11]
Tr. 119. For emphasis, the Inspector summed up that the importance of complying
with the standard is so that the foreman “knows where he’s going and [ ]
develops familiarity of where that escapeway is in relation to the sections of
the intake air shaft to get to the surface.” Tr. 122.

The Inspector then spoke to his
significant and substantial (“S&S”) designation, beginning with the second Mathies
element, as the first element, violation of the standard, was conceded. Hatfield
identified the discrete safety hazard as “being exposed to smoke, carbon
monoxide, not being familiar with the turns [along the escapeway route] [and
lacking familiarity necessary to] lead [his] crew out [,] in smoke and CO gas.”
Tr. 122. The contribution to the hazard presented by the violation, was not
being familiar with landmarks in the escapeway to get miners safely out. That
failure contributed to the risk of exposure to smoke and CO. Tr. 123. The lack
of familiarity is heightened by the length of the escapeway itself, about 2
miles, and by the turns and overcasts in that route. Without that familiarity,
gained by compliance with the standard, one traveling in smoke may mistake an
overcast for a stopping and miss the steps. Further, the lack of familiarity
makes it easier to get lost or turned around. Conversely, by knowing the
presence and location of overcasts, that knowledge informs where walls are and
provides a reference point, which can reassure that one is going in the right
direction, towards exiting the mine. The Inspector confirmed that the lack of
familiarity, in his opinion and experience, acts to increase the likelihood of
an injury occurring. Tr. 125. One may go in the wrong direction as a
consequence and that lack of familiarity can lead to panic with the men under
his charge perhaps losing confidence in him.

Inspector Hatfield also listed the injury
as reasonably likely to be of a reasonably serious nature, marking that as
“fatal” on his citation. In this regard, he noted that a short exposure to
carbon monoxide (“CO”) will kill and all of this is heightened if, as a
consequence of lack of familiarity, the foreman makes bad choices, such as
leaving the primary escapeway and taking alternate entries, or taking the
return, with the effect that the risk of succumbing to CO gas is increased. Tr.

126. While there are things such as a lifeline and reflectors, those are not
     failsafe devices, as they may only be present in a best-case scenario. He noted
     that an explosion, for example, may disrupt those things. In terms of injuries,
     the Inspector expressed that one could succumb to carbon monoxide and smoke
     exposure.

For negligence, marked as moderate, the
Inspector noted that the standard is not complicated and that the operator,
through its upper management, should have known that the foreman, who is also
part of management, had not traveled the primary intake escapeway. Tr. 130.

Upon cross-examination, it was brought
out that miners could use their lifeline in the event of smoke or CO in the
escapeway. That miners would also have SCSRs (self-contained self-rescuers), and
that reflectors are every 25 feet in the escapeway, was also noted. The
Inspector agreed that the foreman had traveled the alternate escapeway, but
that was due to the fact that it was the section roadway too.[12]
It was also asserted that Mr. Halstead had considerable mining experience. However
the Inspector did not buy into the claim that not having traveled the intake
escapeway would have no bearing on a foreman’s ability to lead miners to
safety. In this regard, Hatfield noted that the purpose of the standard is to
familiarize oneself with that escapeway, learning for example to recognize
turns and landmarks in addition to the condition of the top, where cribs have
been built and other conditions such as muddy areas. Tr. 138. The Court concurs
with Inspector Hatfield’s analysis.

Brody called Mr. Barry Browning in
connection with this citation. Browning has been in the mining industry since
1992 and this experience includes acting as a foreman. Tr. 158. Though not
presently employed by Brody, he was working at that mine when this citation was
issued and the citation was issued to him. Tr. 160. Conceding the violation,
Browning countered with the assertion that Halstead had worked in various
locations up the intake, had been to the fan, and had been trained on use of
the fan and hoist. Tr. 161. Halstead was, however, a new employee, having
worked at the Brody mine for only about a month.[13]
Browning marked the areas of the escapeway that Halstead traveled. Tr. 164. Browning
also referred to SCSR cache signs, signs posted in every entry adjacent to a
refuge chamber, reflectors[14]
and lifelines, all apparently presented as factors impacting the S&S
designation. Tr. 176-177.

Browning was of the opinion that the
violation did not present a safety hazard. Tr. 185. This was based upon
Halstead’s familiarity with some parts of the escapeway along with the
fact that it was “well marked and everything.”[15]
Tr. 186. On cross-examination, Mr. Browning conceded that familiarity with
directions makes it easier to go from one location to another and that the
foreman is the one charged with getting his crew out to safety in the event of
an emergency. He also agreed that not being able to escape a mine quickly in an
emergency would be a hazard and that such a hazard would be likely to result in
serious injuries. [16]
Tr. 188.

Upon review of the testimony, the Court
concludes that the violation was S&S and the negligence moderate. The
testimony from Inspector Hatfield established the three disputed S&S
factors, as the first factor, the violation was conceded. The safety hazard,
the risk of miners being unable to escape the mine in the event of an
emergency, contributed to by the violation was obvious. Knowing some parts
of the escapeway route is not a substitute for compliance, nor does it reduce
the hazard in an emergency. While the Respondent pointed to a number of other
safety provisions, with the idea that those provisions reduced the likelihood
of an injury and its seriousness, the focus must remain on whether the hazard contributed
to by the violation increases the likelihood of an injury. As the inspector’s
testimony confirmed, in an emergency situation, the lack of familiarity with
the escape route in those conditions could spell disaster.

A few other points need to made. These
points, which will be made only once in this decision, but which apply to the
other S&S disputes here, speak to two aspects of S&S determinations.

First, a mine operator’s raising of
putatively ameliorating safety measures, is not part of the appropriate S&S
analysis. As the Commission held in Secretary of Labor v. Consolidation Coal,
2013 WL 4648491, August 14, 2013, (“Consolidation Coal”) redundant
safety measures have nothing to do with the violation, and they are irrelevant
to the significant and substantial inquiry.

More particularly, the Commission there
noted that it “categorically reject[ed] Consol's argument that its other safety
measures, including rock dusting, carbon monoxide monitors, and fire-fighting
equipment reduced the degree of danger and rendered the violation non-S&S. In
Buck Creek, 52 F.3d at 136, the Seventh Circuit rejected the operator's
contention that other fire prevention safety measures mitigated the S&S
nature of an accumulation. It stated that the fact that the operator “has
safety measures in place to deal with a fire does not mean that fires do not
pose a serious safety risk to miners.” 52 F.3d at 136; see also Amax Coal Co.,
18 FMSHRC 1355, 1359 n.8 (Aug. 1996) (rejecting operator's contention that its
redundant fire suppression system reduced the likelihood of serious injury); Cumberland
Coal Res. Inc., 33 FMSHRC 2357, 2369 (Oct. 2011) (reasoning that adopting
the position that redundant, mandatory safety protections provide a defense to
a finding of S&S would lead to the anomalous result that every protection
would have to be nonfunctional before a S&S finding could be made), aff'd
sub nom., Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1029 (D.C.
Cir. 2013) (stating “because redundant safety measures have nothing to do with
the violation, they are irrelevant to the significant and substantial
inquiry”). We agree with the judge that “[w]hile extra precautions may help reduce
some risks, they do not … make accumulations violations non-S&S.” 32 FMSHRC
at 935 at *4.

The second observation, which also has
general applicability, is that an experienced MSHA inspector's opinion that
a violation is significant and substantial is entitled to
substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79
(Dec. 1998); Buck Creek Coal Inc. v. MSHA, 52 F.3d. 133, 135-136 (7th
Cr. 1995).

Finally, when the Commission considers
whether a violation is S&S, and, more specifically, when it evaluates the
reasonable likelihood of injury under the Mathies test, it “considers
circumstances assuming that normal mining operations continue without the
intervention of an inspector.” Consolidation Coal Co., 35 FMSHRC 2326,
2337 (Aug. 2013); See also, U.S. Steel Mining Co., Inc., 7 FMSHRC
1125, 1130 (Aug. 1985) (finding that a poorly ventilated face could be
reasonably likely to cause injury even if methane accumulation at the time of
the citation was nonhazardous); U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (July 1984) (stating approvingly that the ALJ below, when
considering whether a violation was S&S, did not make “any assumptions as
to abatement” and instead assumed continued normal mining operations).

This assumes in each instance that a
court finds the inspector to have been credible. In this instance the Court
finds that Inspector Hatfield was credible and that it is appropriate to afford
substantial weight to his opinion. Apart from the determination however, the
Court independently finds that the violation was S&S. Familiarity with the
escapeway is the key aspect.

The proposed penalty for this was
assessed at $4,329. Upon consideration of the evidence and each of the
statutory penalty factors, the Court agrees that the assessed amount is
appropriate and that amount is hereby imposed.

Citation
7167386 from Docket No. WEVA 2013-370

This
citation, issued October 22, 2012, alleges that “[t]he number 5 section primary
escape way [sic] life line [sic] is not being maintained as required. The life
line was equipped with 2 consecutively installed cones to indicate an up coming
[sic] branch line. There is no branch line in this area. This condition
exist[s] where two primary life lines connect near the mine fan. Standard
75.380(d)(7)(vii) was cited 5 times in two years at mine 4609086 (5 to the
operator, 0 to a contractor).” Gov. Ex 2A, 2B.

MSHA
Coal Mine Inspector James A. Jackson, Jr. testified with regard to this section
104(a) citation. As with Inspector Hatfield, Mr. Jackson has a work background
of significant mining experience. In the cited provision, there is a
requirement for two indicator cones to be equipped consecutively with the
tapered end pointing inby. Tr. 203. This is to indicate to miners during an
escape situation that there is an upcoming branch line. Id. The
Inspector helpfully referred to Gov. Ex 2C, which illustrates the signs and
signals on a lifeline and a branch line.  As suggested by the term, a lifeline
is “a continuous line leading from a working section to the surface or
escapeway, . . . [t]hey’re used for escape during a mine emergency.” Tr. 205.

Although
depicted in the standard itself and copied for Gov. Ex. 2C, at the Court’s
request the Inspector drew a sketch of the problem he encountered. This sketch
is Gov. Ex. 2E, and it shows the two consecutively installed cones along the
sole horizontal line in that sketch. Tr. 207. The vertical line in the sketch
represents another primary escapeway lifeline to which that the horizontal line
was attached. The problem was that this was an escapeway lifeline and not a
branch line. Tr. 208. In short, the two consecutively installed cones conveyed
misleading information, signifying that there was an upcoming branch line. Such
a branch line would have SCSRs or a refuge chamber. That is, the cones advised,
incorrectly, that “some type of safety equipment or a safe haven” would be
there for miners during an escape. Instead, despite the information conveyed by
the cones, miners would come up to a primary escapeway lifeline. Simply stated,
the standard requires that the two cones on a lifeline are to indicate a branch
line coming up, but here there was no such branch line. Here again, as with the
citation next above, Brody stipulated to the fact of violation. Tr. 212,
Stipulation 29.

Inspector
Jackson then spoke to the hazard this admitted violation presented. The hazard,
he stated, was “miners not being able to escape the mine during an emergency in
a timely manner.” Tr. 212-213. The violation contributed to that hazard by
informing miners that they were coming up to a branch line, where they would
find SCSRs or a shelter. When they don’t find that, confusion and panic can
ensue and this will operate to delay their escape, exposing them to smoke and
CO. Tr. 213. By thinking, when they come to the vertical line depicted in the
Inspector’s sketch, that they would be coming to a branch line, they would be
traveling about a 100 feet in the wrong direction before discovering that the
expected SCSRs or a shelter are not there. This mine, the Inspector noted, has
a history of ignitions and methane inundations, a fact which is not in dispute.
Thus, taking all this together, the Inspector concluded that it was reasonably
likely that this misleading information would cause an injury due to miners
panicking and not being able to find their way out of the mine. Tr. 213-214. The
Court agrees.

Because of the information they convey,
cones play significant roles. Even a cone by itself, with its conical shape,
conveys information to an escaping miner. Feeling the tapered end first tells
the miner he is heading in the right direction. That tapered end widens on the
other end of the cone, so a miner knows that by moving from the narrow end to
the wide end, he is proceeding in the correct direction, out to safety. Tr.

215. The safety hazard attendant with this violation is miners not being able
     to escape during an emergency, as the false indicators would lead them to
     believe that safety equipment was nearby, when it was not. Tr. 221. Not being
     able to find that expected equipment would be disruptive to say the least. The
     Inspector also concluded that this misleading information increased the
     likelihood of an injury, as by traveling in the wrong direction, and thereby
     delaying their escape, this would cause panic and confusion. The need for
     miners to then change direction delays the 12 to 15 men that would be involved
     in these circumstances. Being tethered, with SCSRs in their mouth preventing
     oral communication, and not being able to see one another when in smoke, is
     another complication attendant to moving in the wrong direction. Fatal injuries
     could result due to smoke exposure, CO and fire. Tr. 223.  

The
Inspector marked the negligence as “moderate” for this citation because he
concluded that it was an obvious condition. The mine’s weekly examiner is to
check the lifeline as part of those duties. The moderate designation included
consideration that there was some mitigation. Tr. 220.

Upon
cross-examination, it was pointed out that the condition existed where two
primary lifelines connect near the mine fan and that the mine fan is where one
exits the mine. Tr. 224.  Brody’s counsel asserted that the cited condition was
one break, only about 100 feet from the exit. The Inspector agreed that the
proximity of the condition to the fan meant that one would feel a lot of air
when walking in this area. Tr. 225.  However, while conceding that the air
would be blowing, that would be true in ideal conditions, and one cannot assume
that the fan will be running in an emergency situation. Tr. 225. He added that
the fan itself could be an ignition source. Thus, in the Inspector’s S&S
analysis, it was considered that the fan itself could possibly be on fire,
asserting that he considered that to be a reasonable likelihood. Tr. 226. Rather
than the branch line foretold to be coming, incorrectly, by the cones, the
miners were actually coming up to two lifelines. (See the vertical line in Gov.
Ex. 2E). This misinformation caused the inspector to be concerned that the
miners could proceed toward the number 2 section instead of going to the exit. Tr.

229. However, the Inspector agreed that within 100 feet of such a wrong turn,
     escaping miners would come upon the flat end of a cone and then be alerted that
     they were going in the wrong direction. As noted by Brody’s Counsel, if it
     were assumed that the miners came to the same intersection and there had
     been no cones present, there is no requirement for an indicator to
     direct the miners to the exit. Tr. 230. Thus, under that scenario, miners could
     take the wrong turn at that intersection. However, the Court notes that the
     hypothetical falls short in at least two regards. First, the hypothetical
     presents a situation which did not exist. Second, having the wrong
     information at the point of intersection is worse than having no information at
     that point and therefore the point attempted to be made by the hypothetical is
     rejected.

The
cross-examination continued with the now-familiar but, as discussed above,
rejected, theme of noting other existing safety measures. Escapeway drills were
presented as one example of this approach in attempting to show that the
violation was not S&S. The inspector agreed that such drills, which are
done quarterly, would pass the cited area. Tr. 231. The inspector also agreed
that when a miner feels the cited cones, he should then be able to feel another
indicator, namely a rigid coil, when arriving at the branch line, which signals
that there is a refuge alternative there. His notes did not indicate whether
any rigid coil or SCSR indicator was also there as additional misinformation. Tr.

236. Redirect brought forward that in an emergency, if the fan was down, smoke
     could be traveling in an outby direction and an explosion can cause air
     direction to reverse. Tr. 237. Further, if the fan was down and miners were in
     a smoke-filled environment, miners would not necessarily know that they were
     close to the fan. Tr. 237. Upon inquiry by the Court, the inspector confirmed
     that in an emergency situation, with smoke and an inability to see, miners faced
     with those conditions will be in a tense, near-panic, state of mind. The
     inspector also concurred that it is impossible to predict how individual miners
     will react upon coming upon cones which mislead them.

In
its defense, Brody called Mr. Anthony Gibson Jr. Gibson is presently an outby
foreman at the mine. Tr. 243. He also has long coal mining experience. The
citation in issue was issued to Mr. Gibson. He confirmed what had been
suggested during cross-examination; that the fan cited lifeline portion was
about 100 feet from the fan. The slope was approximately 400 feet away. Tr.

247. R Ex. 26.[17]
     Gibson confirmed what was not disputed, if running, the fan will be producing a
     lot of air. Tr. 253. Exhibit R 2C, a record of the mine’s fire drill, was also
     identified by this witness. The cited drill occurred on October 18th
     and this compares with the citation’s issuance date of October 22nd
     of that same year. Gibson also confirmed what the citation notes: there were no
     refuge alternatives nor SCSRs at the location where the 2 consecutively
     installed cones indicated an upcoming branch line, and he commented that it
     would make no sense to have those at that location because it is so close to the
     fan. The Court would observe however that this absence could heighten the
     potential for confusion and/or panic, because the cones would be telling the
     miners something which was at odds with the fan volume, assuming of course that
     the fan was not down. It is true that there was no spiral coil, another
     indicator of a rescuer cache or a shelter, but as with the comment just made,
     that could bring about further confusion. Miners would need to have the presence
     of mind in an emergency to either ignore the information signaled by the cones
     or having relied upon them, then disregard what the cones indicated when no
     spiral coil was located. In the Court’s view this is asking a lot for miners to
     do in the face of an emergency.

Mr.
Gibson did not believe the violation was S&S, asserting that, “even in a
smoky environment – if the fan was off and I was in a smoky environment that
close to the fan, if I had even been there once before, I will know where I was.
And . . . even if I did take the wrong direction - - going the wrong direction
on the other lifeline, there would be reflectors on the other one. There would
be a another cone, with a hundred feet, that I would run into that would show
me I was going the wrong way . . . there would be no way that I could - - I
could see any confusion.” Tr. 258.  However, on cross-examination, Gibson
conceded that lifelines and indicators, such as cones, have to be accurate so
that miners can get out of the mine. Tr. 259.  He also agreed that the
indicators need to be “dummy proof” so that miners are sure they can escape and
that it is a simple matter to be sure that the proper indicators are on the
lifeline. Tr. 259-260. In response to a question from the Court, Mr. Gibson
acknowledged that in the course of conducting the fire drills, just a few days
before this violation was detected, people would have traveled through that
area and that, despite the fire drill occurring on three separate shifts, no
one for Brody noted the misdirecting cones. Tr. 263-264.

The
Court has determined that this violation was S&S. While it is true that, as
Brody’s Counsel pointed out, no cones were required at the area where the
violation was cited, the key is that cones were there and that they
provided false information. Whether near the exit or not, misleading
information, installed by Brody at that location, is inherently dangerous in
the context of a mine emergency. That context, a mine emergency, is the means
for evaluating whether a violation is S&S. A major deficiency with the
Respondent’s S&S outlook is that it does not sufficiently account for the
conditions when the standard comes into play, and the aspect of panic. Thus,
upon review of all the evidence, the Court concludes that there was a discrete
safety hazard contributed to by the violation and a reasonable likelihood that
the hazard contributed to will result in an injury. That there would be a
reasonable likelihood that the injury would be of a reasonably serious nature
cannot be disputed.

The proposed penalty for this was
assessed at $16,867. Taking into account all of the evidence, the Court
concludes that a penalty of $12,650 is appropriate in this instance.

Citation
7167387 from Docket No. WEVA 2013-370

Inspector
James Jackson also testified about this citation. The section 104(a) citation,
alleging a violation of 30 C.F.R. § 75.380(d)(7)(vii) states: “The number 2
section primary escape way (sic) life line (sic) is not being maintained as
required. The life line was equipped with 2 consecutively installed cones to
indicate an up coming (sic) branch line. There is no branch lines (sic) or
connecting life lines in this area. This condition exist (sic) at 2-B belt
break 7 in the primary escape way. Standard 75.380(d)(7)(vii) was cited 5 times
in two years at mine 4609086 ( 5 to the operator, 0 to a contractor).”  Gov.
Ex. 3A.

The
Inspector issued this citation on October 23, 2012. There was no stipulation to
the fact of violation for this citation. Tr. 278. As with the previous citation
for which this inspector provided testimony, he created a simple drawing to
depict the violation in this instance.  Gov. Ex. 3 F. In this instance, like
the previous one, there were 2 consecutively placed cones, but here there was
no connecting lifeline or branch line. Tr. 279. The drawing included a dotted
line to depict what one should expect to find, an upcoming lifeline or a
branch line, but no such line was there. Tr. 280. Thus, had the cones been
properly placed, that line would have been present. Thus, like the earlier
matter testified to by this Inspector, this was another situation where the
cones conveyed false information. As two miners were working in that area, the
Inspector marked that as the number affected. In the same fashion as the
earlier cone violation, the Inspector’s concern was miners encountering
information, information they are trained to rely upon, but that information
was false. Tr. 282-283. This is serious business because the cones tell the
escaping miners to start looking for an upcoming lifeline or branch line, but
neither was present. It bears repeating that the Inspector believed that this
condition was reasonably likely to cause an injury because when the standard
applies miners will be in smoke, unable to speak with one another because they
are wearing SCSRs, and at risk for panicking. The cones, as noted, will tell
them to start looking for something, but they will find nothing is there and
this will operate to delay their escape. Tr. 283. The negligence was marked as
moderate because this condition was obvious and the operator is required to
travel and examine this area weekly. As a mitigating factor, he did take into
account the mine’s assertion that there used to be a branch line at that
location.

Upon
cross-examination, it was suggested that there were caches of SCSRs inby of the
cited location, but the Inspector could not state the number of such caches,
whether one or more. For refuge alternatives, the Inspector could not state if
there was more than one. Tr. 288.  It was also contended that there was a
“space” between the 2 consecutively installed cones, the import of that being
that, if such a space was present, that space would indicate that there was no
branch line coming up. Tr. 289. The issue of the extent of the space between
the cones was part of Brody’s defense, although in later testimony from the
Inspector he stated that Mr. Gibson never raised any contention about the
presence of a space between the cones.[18]
Inspector Jackson stated that a small space, for example ¼ of an inch, would
still announce to miners that a branch line a life line was in this area, but a
space of 6 inches would be sufficiently apart so as to not mislead miners. Tr.

290. Presented as a mitigating factor, the Inspector could not recall any other
     conditions outby the cited problem that would tell miners that they were going
     the wrong way. Tr. 294. Further, the cones were facing in the correct
     direction. The issue was not one of direction, rather it was of misinformation.
     Miners coming upon the two cones would expect that a branch line would be
     present and they would try to find that branch line, an impossible task as it
     did not exist there. While Brody’s Counsel suggested that miners in that
     circumstance would simply proceed on, the Inspector did not agree. He expressed
     that the false indicators would slow the miners down and thereby delay their
     escape, looking for the non-existent branch line. Tr. 295-296. As before, Brody
     referred to considerations which it viewed as countering the S&S
     designation, such as that escapeway maps were present at different locations
     and that the inspector found no deficiency with them.

On
redirect, the Inspector noted that miners are trained to look for a
branch line once they come upon such indicator cones. And this is significant
because they will be looking for that branch line and the SCSRs there. Finding
them, they might switch out to a fresh SCSR or carry one as a spare as they
continue their escape. Tr. 299.

Anthony
Gibson testified for Brody on this matter as well. It was his contention that
the cones were close but that there was space between them. Later, he stated
that the space was about six to eight inches and then added that there was “a
little bit of space between them.”   Tr. 312. A point being made through this
witness was that the cones were the only misinformation, in that there were no
other indicators, beyond the cited cones, telling miners that a SCSR cache or a
refuge alternative ahead. In this instance, Gibson stated, the exit to the
slope or to the elevator was around 3500 feet. Considerations similar to those
raised with the earlier cone issue were then brought up. These involved things
like the presence of up-to-date mine maps. It was Brody’s contention that the
miners’ knowledge of maps shows that those miners would have known about things
like the actual location of the SCSRs.[19]
Thus, Brody was asserting that the miners would know better and ignore the
erroneous information conveyed by the cited cones. The Court is not convinced. In
an emergency, especially with limited or no visibility due to smoke, it is more
than a stretch to believe that miners would rely upon their knowledge of the
mine maps to tell them where the SCSR caches are, and ignore what the cones
told them.  

Despite all the other ancillary matters
raised, the defense ultimately rested upon the idea that there was a space
between the cones and for that reason, the space, miners would not think there
was a nearby branch line. Gibson’s perspective went further, however, because
he did not believe that there was any safety hazard even if the cones
had no break between them. Tr. 324. His reasoning was that, because just inby
the cited area there was a SCSR cache and therefore the miners would realize
there would not be another cache so close by.  In response to questions from
the Court, Mr. Gibson stated that he did not know why the cones were present at
the cited location. Tr. 326. Although not mentioned during his direct
examination, Mr. Gibson, in response to a question from the Court, stated that
he did tell the inspector that there was a space between the cones. He further
related that the inspector responded that the cones were too close together. Tr.

328. Gibson agreed that the inspector’s notes make no mention that Gibson
     claimed there was a space between the cones. He also agreed that coming upon
     the cones, even if six to eight inches apart, would be out of the ordinary. Tr.
329. Also, he agreed that the cones are tactile sensors needed when visibility
     is limited and that if a miner is confused during an escape that will cause
     delay.  Tr. 342. Diminishing his objectivity, Mr. Gibson maintained that,
     because of their training, during an emergency situation, even though dealing
     with poor visibility from a smoke-filled environment, and with the possibility
     of injuries, miners will not be under stress or duress. Tr. 342-343.

The
Court concludes that this violation is also significant and substantial, a
conclusion largely based on the reasoning presented in the other cone
violation. Missing information is one thing, but imparting incorrect
information is, in the Court’s estimation, worse. Did the incorrect information
present a contribution to the discrete safety hazard and was there a reasonable
likelihood that the hazard contributed to will result in an injury of a reasonably
serious injury? Based on the credible evidence, the Court concludes that the
answer is “yes.” The violation clearly would operate to make matters worse,
when evaluated in the proper context: a mine emergency escape.

The
proposed penalty for this was assessed at $4,689.00. Taking into account all of
the evidence, and applying the statutory criteria, the Court concludes that
penalty remains appropriate and it is so imposed.

Citation
7167388 from Docket No. WEVA 2013-370

Inspector
Jackson testified for this violation also. For this matter, Brody has conceded
the fact of violation and that the violation was correctly determined to be of moderate
negligence. Tr. 345-346. The Citation stated that the “primary escape way (sic)
life line (sic) for the number one section is not being maintained in a safe
condition. The life line along the number 2 belt was equipped with 5
directional cones at intervals not exceeding 100 feet with the tapered section
pointing outby. This would give miners the indication that they are traveling
in the wrong direction during a mine emergency.” Gov. Ex. 4A. Issued on October
29, 2012, the citation listed 30 C.F.R. § 75.380(d)(7)(v) as having been
violated. As before, the Inspector made a sketch of the cited condition, as a
visual aid. The drawing, Gov. Ex. 4D shows a line, depicting the lifeline and
the inby and outby direction references and the 5 cones, each with the blunt or
wide, flat end first, as one would encounter if moving in an outby direction. The
cones were therefore facing in the wrong direction, a condition Brody has
conceded. To be clear, the flat end should not be encountered first; a miner
escaping should feel the narrow end first.

The cones’ direction is important, as
noted earlier, because a miner trying to escape from a mine in an emergency
would encounter the base end of the cone first, not the tapered end. Tr. 349-350.
Gov. Ex. 4C. The mine was operating at the time of the citation’s issuance,
engaged in second, or retreat, mining. Tr. 350-351. As with the other
violations of this nature, the Inspector was concerned over the impact of false
indicators on the lifeline. In this instance, the cones direction would tell the
miners, by their training, that they were moving in the wrong direction, when
in fact they were not. Tr. 352. For each of these lifeline citations, one must
assume that they are, by their purpose and design, being employed in an
emergency. Under such circumstances it must be presumed that there is smoke,
making visibility poor to nonexistent, with miners wearing SCSR’s and lacking
any real ability to communicate orally with one another. In this instance with
the five cones facing in the wrong direction, miners would travel nearly two
football fields (600 feet) before coming upon a cone telling them that they
were in fact traveling in the right direction after all. Tr. 352. Although
Counsel for Brody agreed that the assumption in this situation is the presence
of an emergency, there was an objection to the fact that this is a gassy mine. The
Court overruled the objection however because the mine’s gassy nature was
raised in the context of the inspector’s view that there was a reasonable
likelihood of an injury. The Brody Mine is classified in the highest category
of methane liberation and for that reason it is on a five-day spot inspection. This
means the mine has a methane inspection every five days. The mine has a history
both of ignitions and methane inundations. It was the Inspector’s view miners
not being able to escape in an emergency if they have delays will cause
fatalities. Tr. 353.

Of course the Inspector could not
predict how each miner would react when coming upon a cone telling that miner
he is going in the wrong direction, but he considered an escape to be panic
situation and if he came upon such a cone, he would try to find the right
direction. In this instance it would tell him to turn around. Doing so, relying
upon the cones which are to be relied upon, would send him in the wrong direction.
If miners then can’t escape due to false indicators on the lifeline and the
delays resulting from that, death due to CO poisoning, smoke and fire could be
the outcome. Tr. 354.

Upon cross-examination, Brody’s Counsel
tried to make inroads upon noting that, while the citation refers to five cones
facing the wrong direction, that number was not mentioned in the inspector’s
notes. Tr. 360. However, upon consideration, the Court credits the Inspector’s
testimony that he found five (5) such cones with the wrong direction
indications.[20]
Another point made was that escaping miners would have come upon a number of
cones correctly indicating the direction to escape. Tr. 356. However, the
Inspector did not adopt the suggestion that one would rely upon the previous
cones’ information and proceed in the same direction, noting that one would
need to travel some 200 feet before encountering the next cone. Tr. 366.

This violation was clearly established
as S&S. 5 cones in the wrong direction is a major shortcoming. The Court’s
previously explained rationale in support of the S&S finding fully applies
in this instance.

Upon consideration of all the evidence,
and each of the statutory criteria, the Court concludes that the proposed
penalty amount of $12,248.00 remains appropriate and it is so imposed.

Citation
7167389 from Docket No. WEVA 2013-370

In
this instance, Brody again stipulated to the fact of violation. Tr. 373. The
issuing inspector, Inspector Jackson, again testified regarding this citation. The
Citation, No. 7167389, issued October 29, 2012, listed the condition or
practice as: “[t]he primary escape way (sic) life line (sic) along 2 belt is
not being maintained in a safe condition. The up coming (sic) branch line for
the SCSR’s was not properly identified by the two consecutively installed cones
with the tapered ends pointing inby. The primary escape way life line was
equipped with four cones with the base sections in contact to form a diamond
shape. Standard 75.380(d)(7)(vii) was cited 7 times in two years at mine
4609086 (7 to the operator, 0 to a contractor). Gov. Ex. 5A.

As
with the previous citations he addressed, Inspector Jackson again drew a sketch
to illustrate the violative condition. Tr. 375. Gov. Ex. 5D. Jackson drew a
single horizontal line, depicting the primary escapeway lifeline, with the inby
and outby ends marked and four cones, comprising two diamond shapes on that
lifeline. Such an arrangement, the dual diamond configuration indicates to
miners that they are on a branch line, coming up on SCSRs. Tr.

376. Instead, there should have been two directional cones there, not the
     double diamond arrangement. Tr. 386.

The
hazard associated with this is “miners not being able to find their proper
safety equipment during a mine emergency for escape.” By miners being misled,
thinking that they were on a branch line and coming up to SCSRs, confusion and
delay would ensue.  Such miners’ escape would be delayed as they looked for the
expected equipment, equipment which they have been trained to look for, upon
coming upon the double diamond cones. Tr. 378.  Injuries that could occur from
such a delay would be CO exposure and smoke inhalation.  The negligence was
marked as “moderate” because Inspector Jackson considered the condition to be
obvious. It occurred on the primary escapeway lifeline and this is required to
be examined weekly. Moderate negligence was marked because there was a branch
line in the area and the operator had put the diamond cones on the wrong line.

Upon
cross-examination, the Inspector agreed that there was a branch line right
after the double diamond indicator and that there was a double diamond
indicator on that branch line. Tr. 384. However, the Inspector did not agree
that if an escaping miner comes upon a double diamond indicator, signaling that
there is a SCSR cache, and then, within an arm’s length, comes upon another
double diamond indicator, such miner would assume he was at the SCSR cache
line. Tr. 386-387. The Inspector reasoned that once a miner comes upon the
double diamonds, that miner will conclude that he is on a branch line and that
such branch line is connected to SCSRs. In such an event, the Inspector
believed that a miner will not reach out for a branch line, they will conclude
that they are already on one. This reaction, the Inspector maintained, is how
the miners are trained to react. Again, the Inspector’s point was that, upon
feeling the double diamond, they will think that they are on the branch line
itself. That is what the double diamond cone arrangement signifies and what the
miners are trained to conclude upon coming to that arrangement. Accordingly,
they would not be expecting another line connected to that.  

In
its defense to the S&S designation, Brody again called Anthony Gibson. He
was traveling with the Inspector and the citation was issued to him. Gibson
agreed with the described diamond configuration of the cones on the lifeline,
but added that there was a branch line there, which led to the SCSRs. Further,
there was a proper SCSR indicator on that branch line and the line was within
an arm’s length of the lifeline. While admitting to the problem with the
misleading diamond cones on the lifeline, Gibson did not believe the condition
presented a hazard. His opinion stemmed from the view that the cones wouldn’t
tell miners to turn around nor to go in another direction. Tr. 404. Instead, he
believed the miners would reach for the branch line that was there. The branch
itself, Gibson added, was immediately after the double diamond cones on the
lifeline. Further, he stated that a miner, keeping his hand on the lifeline,
would immediately feel the branch line. When miners feel a branch line,
signified by the double diamond cones, one would then run one’s hand along that
line to see if the coil is present. Tr. 405. Reflective signs would also be
present. Gibson was of the view that the acknowledged violation did not present
a hazard because “it wouldn’t interfere with anything.” Tr. 408.

The
Court then asked some questions of the witness. Mr. Gibson agreed that cones
serve but a single purpose: to convey information and to convey that
information in the context of an emergency. Tr. 408-409. Gibson then agreed
that it is essential that cones provide accurate information and if
cones provide misinformation or inaccurate information, they are not serving
their sole purpose. Tr. 409-410.

On
cross-examination by the Secretary, Mr. Gibson acknowledged that the foreman
for the section is required to examine the area where the condition was found
on a weekly basis. Tr. 410. This examination responsibility includes checking
to make sure that the lifeline is intact and the indicators accurate. Surprisingly,
when asked what the double diamond configuration means to him when encountering
cones in that arrangement, Gibson stated that if he “had already traveled a
long ways on a primary lifeline, that would not mean nothing to me.” Tr. 411.

The
Court finds that this citation, along the reasoning presented above, and upon
the evidence pertaining to this particular violation, was also S&S.

Upon
consideration of the statutory criteria as applied to the credible evidence of
record, the Court concludes that the proposed penalty amount of $12,248.00
remains appropriate and that amount is so imposed.

Citation
No. 7167393 from Docket No. WEVA 2013-370.

Here
also, the fact of violation was stipulated. A section 104(a) citation, issued
November 1, 2012, it listed the condition or practice as “[t]he branch line
from the secondary escape way (sic) life line (sic) to the number 1 section
refuge alternative is not identified.      A rigid spiral coil at least 8
inches in length was not provided for the branch line leading to the refuge
alternative on the number one section. Standard 75.380(d)(7)(vii)(B) [the
standard cited in the citation as having been violated] was cited 3 times in
two years at mine 4609086 ( 3 to the operator, 0 to a contractor).” Gov. Ex.
6A.

As
he done before, Inspector Jackson drew a sketch of the violative condition. Gov.
Ex. 6D. The horizontal line depicts the secondary escapeway lifeline; an arrow
on each end of the line shows the inby and outby directions for that lifeline. The
vertical line on the sketch depicts the branch line in the cited area; the
words “branch line” were added to make that clear. It was the branch line that
did not have the rigid spiral coil. Tr. 415. The coil was to be on the branch
line within an arm’s length reach of the lifeline. The hazard is miners not
being able to find the rescue alternative for safe haven in a mine emergency. Tr.

417. A branch line can lead to a SCSR cache or a refuge alternative. Tr. 434. Miners
     are trained that, upon coming upon the two consecutive directional cones, they
     are to look for the branch line. The branch line was present, but the spiral
     indicator, telling them that was not present. Tr. 417. The spiral indicator, or
     coil, tells the miners that there’s a refuge alternative at the end of the
     branch line. That refuge alternative will have air, food, water, sufficient to
     allow the miners to survive for 96 hours. Tr. 419. The Inspector marked the
     violation as reasonably likely for an injury as the missing coil will cause
     confusion and along with that, delay in finding it. This can lead to fatal
     injuries with the miners being exposed to CO, smoke inhalation or simply delay in
     exiting the mine, which delay itself can have adverse consequences. The
     negligence was marked as moderate because the Inspector concluded that the
     condition was obvious. The area is to be examined at least every eight hours. There
     was a mitigating circumstance, however, as the refuge chamber recently had been
     moved up with the section. Tr. 420. The refuge alternative and the branch line
     had been moved up with the section, but the mine did not install the coil back
     on the branch line after doing that. Tr. 421.

Upon
cross-examination, it was noted that refuge alternatives came into existence
around 2007, following the Sago and Aracoma mine disasters. Tr. 424. Following
the approach taken in earlier cross-examinations, Brody noted that the miners’
first goal, if possible, is to get out of the mine. That is to say, being able
to exit the mine is a better alternative than resorting to a refuge
alternative. It was also noted that the double, diamond shape, cones were
present at the branch line and that a miner, feeling those cones, will know
that he is coming to a branch line.

The
Inspector could not agree, however, that if the miners know that the first
branch line is for a refuge alternative, then they will know that, regardless
of whether the rigid spiral coil is present. Tr. 427. The Inspector responded
that he could not assume what miners will think in a panicked environment in
that circumstance and that it’s been his experience that miners do panic in an
emergency. Tr. 427. Brody’s attorney suggested that miners might not panic but
rather “rise above the situation and behave in an admir[able] fashion.” Tr.

429. However, the Court would observe that safety standards, including the one
     in issue for this admitted violation, are not designed, nor is it their
     purpose, to assume that miners will act with wisdom and valor in emergencies. Rising
     above the situation is certainly not part of the S&S analysis either.

As
mentioned, Brody’s cross-examination focused on what the court considered to be
ancillary matters: that this was the secondary escapeway and miners are trained
to go out the primary escapeway, that some miners will have CO detectors on
them and, by that reasoning, “that addresses that” (i.e. the hazard of CO). Tr.

430. A theme of Brody’s cross-exam was that miners would know better even
     without a coil present. That is, if the miners knew that the first branch line
     on the way out was a refuge alternative, coil or not, they would know the
     refuge was there. However, the Inspector responded that, with no coil, he could
     not claim to know what the miners would think. Tr. 435.

In
its defense, Brody called Derek Morrison, a former employee at the mine. Tr.

436. At that time he was the mine’s assistant safety director. Tr. 444. He was
     issued the citation and agreed the safety coil was not present. Tr. 445. The
     branch line involved was for a refuge alternative. Through miners’ training,
     Morrison asserted that miners knew there was no other branch line between the
     section and that branch line. Tr. 445. As before, Brody offered, through this
     witness, that there is a sign where this branch line connects to the lifeline. Morrison
     stated that the double cones inform the miners that there is a branch line
     equipped with either a refuge shelter or a cache of SCSRs. Tr. 447. In effect,
     Morrison asserted that the absence of the coil would have no effect because the
     miners were trained that upon coming upon the double cones, they knew there was
     a shelter.  In fact, he agreed that the miners would know this even without any
     training because they ride by that area every day. Tr. 447.

The
Court concludes that this violation is the factors raised by Brody are not
pertinent to the Mathies analysis. The absence of the spiral coil
presents a measure of danger contributed to by the violation, and it certainly
contributes to the likelihood of an injury. The absence of the coil cannot be
dismissed as a negligible matter, especially when measured by the
circumstances, a mine emergency evacuation, to have the expected coil absent. The
Court concludes that the violation is S&S. 

Upon
consideration of all the evidence in this matter and application of the
statutory criteria and that the refuge chamber recently had been moved up with
the section, the Court concludes that $13,703.00 is an appropriate penalty in
this instance and it is so imposed.

Citation
7167405 from Docket No. WEVA 2013-564

Inspector
James Jackson also testified regarding this citation, which was issued by him
on December 4, 2012. The condition or practice identified in that section
104(a) citation stated that the “secondary escape way (sic) life line (sic) to
the number 3 section is not being maintained as required. The life line is
equipped with two consecutively installed cones to signify an up coming (sic)
branch line. There is no branch line in this area. This location is where the
number 3 section secondary connects to the number 2 section secondary life
line. Standard 75.380(d)(7)(vii) was cited 6 times in two years at mine 4609086
(6 to the operator, 0 to a contractor). Gov. Ex. 7A. Brody stipulated to the
fact of violation.

Inspector
Jackson explained that the standard requires two directional cones
consecutively installed on the escapeway lifeline to indicate an upcoming
branch line. Here, the cones were present, but they should not have been
there, as there was no upcoming branch line. The Inspector also drew a sketch
of the violative condition to help the Court visualize the situation. Per the
sketch and his testimony, the cones were present on the secondary escapeway
lifeline, and this appears as the horizontal (and labeled) line on the sketch. A
vertical line, also representing the secondary escapeway is also part of this
drawing. Thus, the two lifelines connect at that intersection but it is all
part of the same lifeline. Tr. 458. Gov. Ex. 7D. As noted earlier, a branch
line is to lead to either SCSRs or a refuge alternative. Tr. 460.  Gov. Ex 7C
is also helpful to understanding this admitted violation. At its top, the
drawing at Gov. Ex. 7C shows two gloves around the lifeline and the two
indicator cones right next to those gloves. The inspector observed the cones,
but unlike the drawing at Gov. Ex 7C, there was no branch line
immediately thereafter.  Tr. 460.

Again, the Inspector’s safety concern
was confusion occurring during an emergency from the false indicators. The
indicators, falsely, would tell miners there was a branch line coming up and as
a consequence they will be looking for either SCSRs or a refuge alternative. Not
finding that will create confusion and delay in escaping the mine. Tr. 461. In
this instance, instead of a branch line, the miners would come upon a secondary
escapeway lifeline. In the Inspector’s opinion the misinformation will cause
miners to become confused and thereby delay their escape by diverting time
looking for emergency equipment. Tr. 462. Such a delay can result in fatal
injuries from smoke inhalation and CO poisoning. It needs to be remembered
that, coming to the cones, the miners, not finding the expected branch line,
will be confused and they will stop. That is not all. In an emergency situation,
when a lifeline is being used, miners are not going to be able to see and the
misinformation will cause them to lose their orientation. They will be
uncertain which way to proceed. If they take out their mouthpieces to try to
communicate with other miners in that situation, they will die. Tr. 462.

The
Inspector marked the negligence as moderate because the condition was obvious
and in an area required to be examined every eight hours. Examining the
lifeline is one of those responsibilities.

Upon
cross-examination, the Inspector agreed that this condition was very similar to
the violation he found for Citation 7167386.  One distinction is that this
citation, 7167405, involves a secondary escapeway. Tr. 463. Again, the approach
of Brody’s Counsel was to consider circumstances that were different from those
cited. For example, it was pointed out that if no cones had been
present, there would not have been a violation issued. Tr. 464. Of course, this
ignores what was present and the misinformation being imparted by the
cones’ presence.  Consistent with this observation, the Inspector did not agree
with the assertion that the presence of the cones did not increase the hazard. Instead
the Inspector stated that the cones would cause more confusion brought about by
miners looking for a branch line. Tr. 465.

Mr.
Scotty Watkins was called by Brody in its defense of the S&S designation. At
the time of the citation’s issuance Watkins was employed at the mine as an
outby electrician. Tr. 471. Mr. Watkins was the individual to whom the citation
was issued. Examining Gov. Ex. 7D, after noting an inconsequential error in the
sketch, Watkins stated that both lines, the vertical and horizontal, depicted,
were secondary escapeways, an undisputed observation. He agreed that miners
working on that section would travel the cited area two times per shift. As
with other witnesses for Brody, Mr. Watkins did not believe that the
misinformation conveyed by the cones presented a discrete safety hazard because
of the miners’ training. Miners are taught, he said, that if they don’t
come up to what is expected, they are taught to proceed on. Tr. 477. At the
intersection, there is no indicator which way to proceed, right or left. Instead,
if the wrong direction is chosen, one will continue until a cone informs
the miners they are going the wrong way. Tr. 477.

During
Mr. Watkins’s cross-examination, he agreed that in an emergency escape, the
only indicator miners have is the lifeline with the indicators. Tr. 479. He
also agreed that delay, that is, the longer one is in a mine during an escape,
the more likely it will be that one will be injured. Tr. 479. Nevertheless, it
was Watkins position that false indicators would not slow down miners during an
escape because of their training. Tr. 480. In response to questions from the
Court, Watkins reiterated that if one comes upon false indicators, false
information from the cones, miners can ignore what the cones tell them because
of their training. Tr. 481. He further agreed that one of the reasons to ignore
the cones is because a miner will come up against additional cones and that those
cones will tell the miner if he is going the correct way or not. This, as
the Court pointed out to the witness, creates a contradiction because Watkins
was simultaneously asserting ignoring the information from the cones in
one instance but to then follow the information from the subsequent
cones. Tr.482-483. To this, the witness asserted that one would be able to rely
upon signs and reflectors to orient oneself. Tr. 483. He further agreed that
indicators in the mine, other than the cones, are more reliable sources of
information. Tr. 483.  

For
the reasons, rationale and bases already articulated above, the Court finds
that this lifeline violation is also S&S and of moderate negligence. Upon
consideration of the statutory criteria as applied to the credible evidence of
record, the Court concludes that the proposed penalty amount of $18,271.00
remains appropriate and that amount is so imposed.

Citation
7168854 from Docket No. WEVA 2013-997

Inspector
Joshua A. McNeely testified for the Secretary regarding this citation. The
condition or practice section stated that the “lifeline in the active Beaver
Mains primary escapeway is not equipped with two securely attached cones,
installed consecutively with the tapered section pointing inby, to signify an
attached branch line is immediately ahead for the refuge shelter. 15 miners are
working on the inby section. This condition would delay miners trying to escape
quickly in an emergency. Standard 75.380(d)(7)(vii) was cited 7 times in two
years at mine 4609086 (7 to the operator, 0 to a contractor).” Gov. Ex. 9A.

Brody
stipulated to the fact or violation and to the designation of moderate
negligence.

The Inspector explained the value of
lifelines in getting miners safely out of a mine in an emergency, stating “it's
touch. It's -- in an emergency situation, you're probably not going to be able
to see good, smoke. You're not going to be able to communicate if there's smoke
and dust because you have your SCSR on. And it provides them the feedback, the
comfort of knowing that I've got ahold of this, and it's got the required stuff
that I've been trained about, then I can get to the surface. Or get to a safe
location safely.” Tr. 499.

The
section cited by the Inspector requires double indicator cones before branch
lines. These serve to make the miners aware that there is a branch line, where
there will be refuge alternatives or SCSRs. Tr. 500. On Gov. Ex. 9C the
Inspector highlighted, in pink, the required double cones. Similarly, he marked
the branch line using the pink highlighting. The spiral coil, having a
snake-like appearance, is also depicted on that pink branch line. The same
diagram shows another branch line, located right above the word “exit” on Gov.
Ex. 9C, and the inspector highlighted that line in blue, adding that it shows
the two diamond-shaped cones, indicating a SCSR cache. Tr. 502. The double
indicators alert miners that there is a branch line coming up. Therefore, the
blue highlighting identifies both the directional cones and the diamond
indicators, alerting miners of the nearby SCSR cache. Tr. 504. Referring again
to Gov. Ex 9C, the cited violation pertains to the pink highlighted cones on
that exhibit. Those cones were not present and, as noted, Brody has stipulated
to the violation. This area was about three cross cuts outby the loading point
of the section, which was approximately 300 feet. Again, the refuge chamber is
intended to provide a short term safe harbor for miners if they are unable to
exit the mine. Tr. 507.

Inspector
McNeely stated that the missing double cones could cause delay in miners trying
to escape or seeking refuge. The hazard is miners not being able to locate the
refuge chamber quickly in an emergency. Under such emergency conditions, with
smoke and dust, confusion, panic and disorientation can occur. The lack of the
equipment, cones here, that miners are trained to rely upon, can cause
confusion. The Inspector expressed that if miners using the lifeline don’t come
upon the double cone indicator, they will simply keep traveling. Tr. 510. There
is no guarantee that, with no double cone indicator present, miners will still
reach out and feel for a spiral coil.  The point made by the Inspector was that
with the double cone indicators present, as they are supposed to be, a
miner will know there is a branch line, and that will tell him there is either
a refuge alternative or a SCSR cache present. Tr. 511. Thus the cones alert the
miner that nearby he will find the spiral coil and then the refuge or the
SCSRs.

On
cross-examination, the Inspector acknowledged that the coil was present on the
branch line. Tr. 516. The sign indicating the location of the refuge was
present as well and the mine maps were up to date, all matters which have a
familiar ring to Brody’s defense in these matters. However, the inspector could
not agree with the conclusion suggested by those things, that in an emergency
it was reasonably likely that miners would have passed this first refuge
alternative as part of an attempt to get out of the section and the mine. Tr.

519. Panic or injuries might cause miners to go to the refuge shelter first.

Another
theme of Brody was that miners would employ judgment in an emergency situation.
In this case, it contended that the miners would still feel the branch line and
their good judgment would tell them to “at least feel to the right to see what
the branch line led to, especially if they were looking for a refuge
alternative [ ].” However again the Inspector couldn’t predict what feeling the
branch line would tell miners to do if they are panicked, scared and can’t see.
Tr. 521. The directional cone indicators, on the other hand, tells them without
any doubt and therefore they don’t have to think about it; they will know that
there is something present which will help them. Tr. 521. Later, the Inspector
added that in an emergency situation, and with no cone indicators present, it
was his view that miners could go right past and not realize there was a branch
line. Tr. 531. The Court would add that Brody’s theme that miners, because of
their training, will think beyond the missing cones may or may not be the case
in a given situation, but in neither event is such a consideration a proper
part of the S&S analysis. It is worth noting, as confirmed by the
Inspector, that the requirement is for both coils and cones. Tr. 533. It should
not be lost that these are not alternative requirements.

Brody
presented testimony in defense of its contention that the violation was not
S&S, calling Kevin Webb, Sr. Tr. 539. The citation, 7168854, was issued to
him. Mr. Webb thought there was one directional cone on the lifeline, just
before the branch line. He believed that a miner would still know he had come
upon the branch line, despite the missing cone, or cones, because he would feel
that branch line. Such a miner would then reach over and learn the type of
branch line that was there; a coil indicating the presence of a refuge chamber;
two diamond cones indicating SCSRs. Tr. 543. In this instance, it would be a
refuge chamber and it would be about 400 feet off the section. With some
initial hesitancy, he did not believe that the absence of a cone would
contribute to a safety hazard, meaning that he did not believe that the
violation was S&S, stating: “No. It could - - well, I don’t think so.” Tr.
545-546. This view was based on the view that “Well, you’re always going to
escape. I mean, the cone was there to keep you going to the outside.” Tr. 546. Nor,
did he feel that the violation would create delay, again “because you’re going
to the outside. Tr. 546.

On
cross-examination, Mr. Webb agreed that if miners are in need of a refuge
chamber, that is because they are unable to escape and that this could be due
to a blocked escapeway or because there are injured miners who cannot be
carried out at that time. He also agreed that cones provide tactile feedback
and are meant for conditions when miners can’t see during an escape. Tr. 548. While
repeating that they are trained to go to the outside as quickly as possible,
delay in accessing the refuge alternative, when exiting the mine is not an
option, can mean the difference between life and death. Tr. 549-550. He also
conceded that panic may attend an emergency situation in a mine in the event of
fire or an explosion. Tr. 550. The two cones, he agreed, if present, tell
escaping miners that there is a branch line ahead. Tr. 551.

The
essence of the defense is that miners will be holding onto the lifeline as they
escape and even without the cones or with just one cone, they will still feel
the branch line and therefore they will be informed and no delay will occur. The
problem with Brody’s defense is that it asks not only that these other safety
considerations be taken into account in the S&S analysis, it effectively
seeks to negate the purpose of the cones or coil, as the case may be, in the
analysis, as if those safety requirements are superfluous. But, in the Court’s
view, such an analysis sidesteps that the test for S&S is whether the
violation contributes to the hazard and the Court concludes that by the
escapeway not being equipped with two securely attached cones, installed
consecutively with the tapered section pointing inby to signify an attached
branch line is immediately ahead for the refuge shelter, does so contribute and
that there is a reasonable likelihood that the hazard contributed to will
result in an injury.

Accordingly,
the Court concludes that upon consideration of all the evidence in this matter
and application of the statutory criteria, that $5,683.00 is an appropriate
penalty in this instance and it is so imposed.

Citation
No, 8155914 from Docket No. WEVA 2013-1055.

Inspector Jack
Hatfield was recalled for this matter. Issued on April 8 2013 and served to
Kevin Webb, Brody mine foreman, the condition or practice section of the
section 104(a) citation provided that the “Strata Life Shelter[21]
provided for the 1 Section Panel is not being maintained for the miners to
safely use during an emergency. Fallen, broken and sharp edged mine roof
material measuring 8ˈ[feet] long by 4.5ˈ[feet] wide is found 29ˈ[feet] away
from the access door of the shelter. This area of deployment has to be kept
clear, according to the clearly observed sign stating, 42ˈ [feet] to be kept
clear on the deployment side of the shelter. In a smoke filled entry, the
workers would deploy the tent and then rupture the bottom of the tent while
trying to enter the shelter without seeing the fallen slate. Standard
75.1506(g) [the standard cited in this instance] was cited 1 time in two years at
mine 4609086 (1 to the operator, 0 to a contractor).” Gov. Ex. 11A. There were
no stipulations for this matter.

The
Inspector’s concern was a rupture of the shelter tent. Depending on the size of
a rupture, the conditions when it was being deployed, and other factors during
an emergency, the shelter may not function effectively, defeating its purpose. Tr.

564. The manufacturer-supplied instructions advise that “where the fresh air
     bay is positioned should be kept clean and free of any debris that could hinder
     the unit’s deployment.” Tr. 565. Inspector Jackson stated that he “observed
     fallen, sharp-edged mine roof material that had fallen on the deployment end of
     the refuge alternative.” Tr. 567. He found those sharp materials at a location
     29 feet back from the initial deployment point, meaning that the tent was
     exposed to such sharp materials for 13 feet, the remaining length of the tent
     deployment length. Tr. 569. It was his opinion that when dragging the tent over
     the sharp materials they would cut the tent floor material as miners in the
     tent would walk over those materials and, in his view, such sharp rocks would
     then come up through the bottom of the tent. Tr. 570. The cited condition was
     abated by Kevin Webb’s direction to have a scoop clean up the area.

The
Inspector viewed the alleged violation as S&S because it contributed to the
hazard of men being exposed to carbon monoxide gas and would delay workers from
entering the shelter. The need to remove the sharp rock before deploying the
tent and, in doing that, exposing themselves to cuts to hands and wrists in
that effort, were other factors of concern. Tr. 572. He marked the injury
severity as fatal, on the theory that, unaware that the tent had been cut, miners,
having removed their SCSRs once inside the tent, would be subject to CO
entering it. In sum, the Inspector considered the violation to be reasonably
likely because “there was a confluence of factors, . . . having to pull the
tent out over top of the rocks. You’re in smoke. I’m looking at it from the
standpoint that it’s - -you know, it’s more than possible . . . [with] that
rock left there . . . that they would slice their tent . . . dragging a tent
over top of [the sharp rock] . . . and then walking inside the tent and
stepping on the unseen rock.” Tr. 575.

Inspector
Hatfield considered the negligence to be moderate, as examining the shelter is
part of the preshift check and this includes checking for fallen roof rock. He
could not determine exactly how long the condition had existed, but believed it
had been longer than since the last preshift and he believed that it may or may
not have been something noted in a preshift examination. However, he believed
it should have observed. Tr. 578. According to his account, Mr. Webb was eager
to get the rock out from in front of the shelter. Tr. 580. The Court inquired
as to whether the Inspector noted the number of sharp rocks that were of
present concern. He made no count but suffice it to say that there was more than
one sharp rock present. Tr. 581.

Upon
cross-examination, Brody’s Counsel inquired about the inspector’s objectivity
and the corollary to that, the absence of bias. In that connection, Brody’s
Counsel directed the Inspector to his notes for that day. See Ex. R 9B. This
inquiry was met with rapid and intense objection by the Secretary’s Counsel. Tr.
584-587. The reason for the Secretary’s objections became immediately clear, as
those notes included these remarks: “Review of Judge Miller’s decision. i.e.
erotica. Very satisfied.” Tr. 587. The Court then took the opportunity to
inform the Secretary’s counsel about the very legitimate ground of bias during
cross-examination, explaining that bias can be explored apart from the
particulars of a given citation. General bias is fair game in
cross-examination. Tr. 587- 588.   

The
Inspector maintained that he was not describing Judge Miller’s decision as
erotica, rather he asserted that “[t]his had to do with a CLR. And I couldn’t
spell her name. I mean, her name - - she’s got an odd name that - - she had
tried to get some respirable dust cases settled, where another operator had
tried to settle some S&S determinations on a respirable dust case. And
Judge Miller admonished her and wouldn’t accept the settlement. . . . .” Tr.

588. The Court stopped the meandering answer, and directed the Inspector to
     explain what he meant when he wrote “erotica, very satisfied.” The Inspector
     responded, “I meant - - it was regarding in regard to the CLR Hrotica - -
     Hrotic.” Tr. 589. The Court asked, “That was her name?” The Inspector responded
     “No. . . . Her last name - - her last name R - - HROTICA. Her - - that was her
     last name. But it was - - it was the decision regarding her - - her
     determination that the S&S was going to be reviewed - - be thrown out on
     respirable dust samples. That’s what that was about, sir.”  Tr. 589.

Perplexed by the answer, the Court
inquired of the Inspector why that was part of his notes. Inspector Hatfield
responded, “I don’t have a clue. . . . I don’t know why I wrote that in there.”
Tr. 589-590. He then agreed with the Court’s inquiry whether he was just noting
his satisfaction that the judge was not willing to eliminate the S&S
designations. Tr. 590. The Court observed that “it’s odd to find this in the
middle of your notes on the day you’re doing an inspection.” Tr. 590. Understandably,
and appropriately, Brody’s Counsel pursued the remark further, inquiring of the
Inspector if his reference was to the Marfork Coal decision at 35 FMSHRC
738, in which Judge Miller chastised a CLR for agreeing to settle several
S&S citations, modifying them to non-S&S. Tr. 592. Brody’s Counsel
argue that this shows bias on the part of Inspector Hatfield towards writing
violations as S&S. Tr. 593. That particular inquiry ended, for the time
being, [22] with the
Court’s observation that it was up to the Court to determine if this
demonstrated whether the Inspector was predisposed to find S&S violations
wherever possible.[23]
Tr. 593-594. However, that was not the end of the exploration of bias regarding
this inspector as he was then asked if he wears a hat with Judge Miller’s name
embroidered on it when he inspects coal mines such as Brody. Again, the Secretary
objected and the Court, again, overruled the objection. Tr. 594. Inspector
Hatfield acknowledged that he has a hat and that it has the words “WVU” on it. He
then added that “it’s got Judge Miller on the side.” Tr. 594-595. To stop the
Inspector from a rambling answer, the Court directed him to simply answer the
question about Judge Miller’s name on his hat, to which he then answered,
“Yes.” Tr. 595.

Quite legitimately, Brody’s Counsel
pressed on with the following exchange:

Q.  And you wear the hat with Judge
Miller's name embroidered on the side to coal mines like Brody because you want
the mine to know that if you write an S&S citation, you're going to beat
them; right?

THE
WITNESS: A.  No, sir.

Q.  Well, why do you wear that hat -- .
. .  -- with Judge Miller's name on it?

THE WITNESS: I like the hat. I like the
hat. It's a good feeling. It's a 47. It's a cotton hat. I like the hat.

THE COURT: Well, that's nice. Did the
hat come with Judge Miller's name already on  it?

THE WITNESS: No, sir.

THE COURT: Okay. Well, then, come on. What
is -- why do you have Judge Miller's   name on the side of your hat?

THE WITNESS: I just had Judge Miller's name put on the side of my hat because
she

ruled in the favor of -- on the S&S. But it's just a hat.

THE COURT: Well, it's not just a hat.[24]

Tr.
595-596.

Brody’s
Counsel then returned to the particulars of the citation. While the
cross-examination explored various aspects of the conditions surrounding the
citation, the Court considered the questions directed to the tent floor
material to be of particular importance. The upshot of this is that the
Inspector could not speak with regard to the construction or durability of that
material. Tr. 604-606.

In
its defense, Brody called Kevin Webb back to the witness stand. Mr. Webb was
familiar with the Strata Life Shelter, including the rugged composition of the
tent’s floor. Tr. 619-622.  He also maintained that the fallen pieces of top
were “kind of flat.” It was his opinion that the tent could have been deployed
right over the rock that concerned the inspector. Tr. 624. Upon
cross-examination, Mr. Webb conceded that the instructions for the shelter
states that foreign material or sharp objects that could damage the tent are to
be removed. Tr. 626. It is fair to state that there was a fundamental
difference between the Inspector and Mr. Webb on the issue of whether the rock
presented a puncture risk if the shelter needed to be deployed. Upon
questioning by the Court, Mr. Webb did concede that some of the rocks may have
been sharp, but were positioned flat and none of them were sticking straight
up, as he recalled. Tr. 630. The Court also inquired, why, if the conditions
were as harmless as he represented, was there a need to bring in a scoop to
abate them. Tr. 631. Webb maintained it was simply faster to use a scoop
although he then conceded that there could have been “somewhat, you know, [of
a] potential for puncture.” Tr. 632. However, although he still believed that
the tent could’ve been deployed over the rocks, he then spoke of a “big hump in
the middle of the tent” but that the miners would probably stay away from the
area. Tr. 633. He admitted that the hump did present a possibility of a rupture
to the shelter. Tr. 634. In fact, Mr. Webb, to his credit in testifying
truthfully, agreed that if he had seen the cited materials on the mine floor,
he would’ve had them removed. Tr. 636.

The
Court concludes that the violation was established, but the government did not
prove the alleged S&S nature of it. Upon consideration of the evidence of
record and the statutory criteria, the Court imposes a civil penalty of
$1,000.00.

Citation
No. 9000313, from Docket No. WEVA 2014-0620

Brody stipulated
to the fact of violation but the S&S designation and negligence remained in
dispute. Tr. 648. Inspector Jack Hatfield was recalled to the witness stand for
this matter.[25]
The condition or practice section of the section 104(a) citation stated that
“[d]uring an inspection of the 4 Section Panel (001/008 MMUs), it is determined
that the section foreman assigned the task of supervising this coal crew by
mine management has not traveled the primary intake escapeway in it’s (sic)
entirety. In the event of an emergency requiring escape using the primary
intake escapeway, there would be unnecessary delays by this crew of workers
while traveling the escapeway and reaching the surface. Standard 75.1504(a)(2)
[the standard cited in Citation No. 9000313] was cited 1 time in two years at
mine 4609086 (1 to the operator, 0 to a contractor).”  Gov. Ex 16A. The
citation was issued on July 30, 2013.

The
section foreman, Mr. Elkins, admitted to the Inspector that he had not traveled
the escapeway in its entirety. Tr. 659. As with the similar violation cited by
this Inspector, earlier in the testimony for this proceeding, the Inspector
stated that the standard’s purpose is because the foreman needs to familiarize
himself with the escapeways in order to know the safe routes out, and to become
aware of landmarks, turns, and other areas in the event of an escape. For this
citation too, the Inspector drew on the escapeway map the route for the primary
route. Tr. 662-668, 671-673. Upon completing his markings on Gov. Ex. 16C, the
Inspector agreed with the Court’s characterization that the foreman had not
examined approximately half of the primary escapeway, which translated into a
distance of approximately a half mile to a mile.[26]
Tr. 668-670.  

Inspector
Hatfield stated that the lack of familiarity would contribute to delays during
an escape. The foreman, per the standard’s aim, must know of landmarks along
the route and know of things such as turns and overcasts, and stoppings with
doors, the lack of knowing all of those particulars can create delays during an
emergency. Tr. 673. He marked the injuries as permanently disabling because if
panic ensues, miners might try to talk and succumb to the smoke and CO. Tr.
673-674.

Upon
cross-examination, Counsel for Brody noted that in an emergency miners are to
use the lifeline, the point apparently being that knowing the route is
superfluous, as one holds the lifeline during that entirety of an escape. Tr.
680-681. Questioning then explored whether, during an escape, sometimes a miner
other than the foreman may take charge and that such an individual may in fact be
familiar with the escapeway.[27]
 Tr. 683-684.

In
its defense of the S&S charge, Brody called Justin Elkins. Elkins is an
experienced miner. Tr. 693-695. He testified that he had traveled the intake
escapeway at a time before became the foreman for that section, when he
was part of the section crew. Tr. 698, 700.    The escapeway had become longer
since then, but he could not state exactly how much longer.

On
cross-examination, the point was made that when one assumes the duty of
foreman, one takes on a leadership position. Elkins could not remember exactly
when he had walked the escapeway from the No. 4 unit. Tr. 702. The Court
observed that the cross-exam aptly noted that a foreman has a different role
and responsibility as compared to one is employed as a roof bolter. Tr. 704.  Elkins
later agreed that the last time he would have traveled the escapeway, albeit
not as a foreman, was in October 2012, some nine months before this citation
was issued. Thus, it is fair to state that the escapeway would not have
remained static during that considerable period of time. Further, the standard
does not speak in terms of equivalencies, where familiarity may have been
acquired in segments over time and before one assumed the duties of the section
foreman.

The
Court finds that this violation, as with the similar violation, is also
S&S. Testimony supports the conclusion that there was a measure of danger
contributed to by the violation and there is a reasonable likelihood that the
hazard contributed to will result in an injury. There can be little doubt that
if an injury were to occur in the circumstances of an emergency, it would be of
a reasonably serious nature. Brody’s various hypotheticals were found to be
unpersuasive. Although repeated often during its defense, the Court does not
find that the presented putative ameliorating factors, such as mine maps, are
not an appropriate part of the S&S analysis.

Nor
does the contention that Mr. Elkins examined the escapeway, through piecemeal
observations, at times before he assumed the role of foreman, diminish the
conclusion that the violation was S&S, as that is not the equivalent of the
standard’s requirements. Once becoming a foreman, very different
responsibilities attach.

The proposed penalty for this was
assessed at $3,405.00. Upon consideration of the evidence and each of the
statutory penalty factors, the Court agrees that the assessed amount is
appropriate and that amount is hereby imposed.

Citation
No. 7165694 from Docket No. WEVA 2014-620

Brody did not
stipulate to any matters for this section 104(a) citation. Issued on August 14,
2013, the condition or practice section stated that “[t]he lifeline provided
for the #4 Super Section is not located in a manner for miners to use to
effectively escape. At crosscut 2 on #2G Belt, directly below the lifeline
there is (sic) two broken pallets, rock dust bags, a small wire spool, [The
spool was later identified by Brody’s witness as measuring about 18 inches tall
and 16 inches wide. Tr. 750] and plastic. The pallets measure 5 1/2ˈ [feet]
wide and 15˝ [inches] high. This condition would hinder/impede miners
attempting to utilize the lifeline in a mine emergency and is likely to result
in fatal injuries.  Standard 75.380(d)(7)(iv) was cited 2 times in two years at
mine 4609086 (2 to operator, 0 to a contractor).” Gov. Ex. 17A.

The
issuing inspector, Timothy Crawford testified.  On that day, the Inspector was
travelling with Brody foreman Dave Petry. Inspector Crawford had been about
other inspection duties when he noticed the cited materials directly beneath
the lifeline. Tr. 715. This lifeline was in the alternate escapeway. In
explaining the obvious hazard presented, with miners escaping using a lifeline
where visibility would be nil and communication precluded because they would be
wearing SCSRs, obstacles with attendant slip and fall hazards cannot be
allowed. Tr. 718. As noted in the Citation, the materials were directly below
the lifeline. Tr. 718. As the Inspector stated: “Miners attempting to utilize
the lifeline being hindered or impaired through the slip, trip hazards with the
materials directly below it” was the hazard which he considered to be
reasonably likely to cause an injury that could be fatal. Tr. 719.  Eleven
miners were so put at risk, as they were working inby on the No. 4 super
section. Tr. 720-721. With some effort on the Court’s part, the Inspector
eventually stated that the moderate negligence he marked applies to obvious
conditions, such as the slip and fall debris he found in this instance. Tr.

725. The Inspector also stated that in an emergency situation with miners using
     a lifeline, walking around such materials is not a feasible option.[28]
     Tr. 727.

Cross-examination
suggested that the material had only been there a short time, as the Inspector
did not note it on his trip into the mine, and his notes remarked that the
condition had likely only existed for 20 minutes. Tr. 732. From this, Brody’s
Counsel suggested that under normal mining conditions, the obstacles would have
been cleared in a short time. Tr. 734.   The Inspector could not speak to
whether a miner was then on his way to clean up the material, although he did
allow that miners might place such material in a travelway if they know it is
about to be picked up. Tr. 735. He did not waiver however that the pallets were
in a crosscut and below the lifeline. In response to more questions about its
exact location, he added that it was located at the junction of the entry and
the crosscut. The intersection is part of the crosscut and the entry. Tr. 737,

744. Further, the Inspector stated that it is not normal practice to put trash
     directly below a lifeline.  Tr. 742. Also, the Inspector denied that it was his
     view that all escapeway or lifeline violations are S&S. Tr. 739.  

In
its defense to this matter, Brody first called Dave Petry, the foreman to whom
the citation was issued. Tr. 746. He has long experience in coal mining.  He advised
that when the citation was issued he “moved it out from underneath the
lifeline,” a task that simply required him to pull it to a better location. Tr.

750. Mr. Petry stated that the materials had only been at the inappropriate
     location cited by the Inspector, for about 10 minutes. Tr. 751. Mr. Petry
     conceded that there was a violation.  However, the Court finds, per his
     testimony at Tr. 752, that Mr. Petry’s testimony regarding the short duration
     of this trash under the lifeline and that it was about to be picked up by a
     scoop, to be credible. Tr. 753. Mr. Petry disagreed with the Inspector’s
     S&S and negligence determinations for the same reasons; it was about to be
     picked up and had been there for only a short time. Tr. 756.

Roger,
“Dusty,” Cook, Brody section foreman, was also called by the Respondent.  Mr.
Cook stated that he was the individual who put the material in the location
identified in the citation and therefore he had first-hand knowledge of the
matter. Tr. 767.  He then explained the circumstances that led to the material
being placed at that location and that it was done in anticipation of it being promptly
removed by the scoopman. Tr. 768. Later, he clarified that he anticipated that
the material would be removed sometime that day. Tr. 773. He went further
however, by asserting that the material was not directly under the lifeline and
that he did not believe they presented a hazard. Tr. 769.  Upon cross-examination,
he admitted that he was not present when the citation was issued and so could
not speak to its placement at that time. Tr. 770. He also conceded that the
pallets, in a smoke-filled environment, could present a tripping hazard. Tr.
771.

Testimony
about the recency of the violation was not pertinent to the S&S analysis
but it is relevant to the degree of negligence. Though the continued normal
mining operations test typically presumes that the violative condition will
continue, in this instance, the credible testimony demonstrated that in fact
the trash was to be picked up in a short time. The Court announced at the
conclusion of the testimony that the violation had been established but that
it was not S&S. Tr. 774.

For
the above reasons, Citation No. 7165694, was established, but upon review of
the evidence of record, and application of the statutory criteria, the
appropriate penalty to be imposed is $500.00.  

Citation
No. 7166781 from Docket No. WEVA 2014-842

For this matter,
Brody stipulated to the fact of violation. The section 104(a) citation, No.
7166781, issued by MSHA Coal Mine Inspector James Crawford, states in the
condition or practice that “[t]he directional cones for the alternate escape
way (sic) on 2 D Belt, in by (sic) the SCSR Cache at 20 XC exceed the 100 foot
maximum spacing. An area from 20XC to 23 XC has no cones. This is 81 rows of
bolts @ 4.0 feet per row, 324 feet total. This presents hazards of delay in an
emergency escape attempt. Conditions such as inability to communicate, low or
no visibility and disorientation are reasonably likely in a mine emergency. Miners
receive tactile feedback and information from the cones and their
configuration. This mine is on a 5 day methane spot rotation for methane
liberation. This area of the mine is far from the slope portal and is a
difficult, time consuming walk to the surface in clear visibility. The No. 2
section crew is in by at time of citation. Standard 75.380(d)(7)(v) [the cited
standard for this citation] was cited 1 time in two years at mine 4609086.” Gov.
Ex. 18A.  

Inspector
Crawford also has long experience in coal mining. His testimony supported the
underlying facts identified in his citation for this admitted violation. Brody’s
Kevin Webb was with him at that time. Working with the 324 foot measure meant
that two or three of the required cones were missing. He listed 14 miners as
affected by this, a number derived by asking how many people are on the
section. The mine was running at the time of the citation. The Inspector stated
that the missing cones could bring about a delay in an escape situation. Tr.

787. The cones are installed to give the miners information. When not present,
     neither is the information they provide. Here, also, the section was about 5 ½
     miles from the mine portal. Although he personally expressed that he might not
     panic if there was no cone when his step count told him to be expecting one,
     but when he went another full distance and there was still no cone, he would
     have to re-evaluate his circumstance, wondering if something had gone wrong:
     “Do we - - do [we] get off somewhere?” That is to say, miners would at that
     point stop and inquire “Are you sure we’re going the right way?” Tr. 788.  He
     reminded however that the miners in that emergency situation can’t talk with
     one another, as they will be wearing their SCSRs.

The Inspector also referenced that
miners in other mine disasters have gone the wrong way during an escape,
although lifelines were not present in those past incidents. (However, it
should be noted that the Court made it clear that references to what occurred
in other mine emergencies would not be considered in deciding the S&S and
negligence issues in this matter. Tr. 801-802) He considered the likelihood of
an injury in such circumstances as reasonably likely.  Although he frequently
encounters the response that a given deficiency is not of great consequence and
that it can be fixed, his response is that in an emergency there is no time to
make such fixes. Tr. 789. As with the testimony of other inspectors in this
proceeding, the Inspector marked the negligence as moderate because it was an
obvious condition. Tr. 790. The Inspector also stated that the term “secondary”
escapeway is a misnomer, because it “is used about 99 percent of the time [at
this mine].”

The
Court concludes that on the core issues, S&S and the moderate negligence
determinations, the cross-examination did not undermine the Inspector’s
testimony. Tr. 791- 805.

Kevin
Webb testified for Brody in defense of the issues remaining for this citation. He
stated that there was a cone at crosscut 23 and double cones at crosscut 20,
the latter indicating a branch line where SCSRs were located. Tr. 806. The area
without cones was “basically level.” He did not believe the violation was
S&S because the length without cones was “a straight piece of roadway” and
because the first thing miners want to do is to get all the way out of the
mine. That exit strategy is what the miners are trained to do. Tr. 807-808. He
believed that miners would continue traveling straight ahead and he added that
the reflectors along would indicate to them that are going the right way. Tr.

808. However, the Court would note that this speculative and in any event it is
     not the test for determining S&S. The issue is whether the undenied absence
     of the cones would contribute to the hazard and based on the Inspector’s
     testimony, it clearly would.  Mr. Webb also did not believe that the absent
     cones would cause delay in escaping. On cross-examination, Webb agreed that the
     purpose of the cones is to provide reassurance, every 100 feet, that miners are
     heading in the correct direction, that is, out of the mine. Tr. 812-813.

The
Court finds that this violation was S&S. The arguments that other
considerations[29]
diminished the S&S aspect are rejected. The Court also sensed that Brody
discounted problems with the cones, at least in the context of any S&S
analysis, regarding their presence, whether they were directionally accurate
and the information they are to convey. The test is whether the discrete safety
hazard was contributed to by the violation and the Court finds that is clearly
the case. As an overall observation, though not controlling in determining any
given citation, as each was assessed on its own merit, it did appear to the
Court that Brody seemed to discount the significance of cones, the importance
of their presence, that they indicate the right direction for escape and, more
generally, the importance of the information they are expected to convey.

Upon
consideration of the evidence of record and the statutory criteria, the Court
concludes that Citation No. 7166781 is affirmed and that the proposed penalty
amount of $29,529.00 remains appropriate.

II.               
Alleged
Roof
and Rib Control and Examination Violations: Conditions
and/or Practices contributing to roof and rib hazards[30]

WEVA
2013-997 Citation No. 8151320.  For this, Brody stipulated to the
S&S finding and all other findings and agrees to pay the assessed penalty
of $9,634.00. Tr. 832.

WEVA
2014-620, Citation No. 7168801 For this too, Brody stipulated to the
S&S finding and all other findings and agrees to pay the assessed penalty
of $4,329.00. Tr. 832.

WEVA
2014-620, Citation No. 7168899 For this too, Brody stipulated to the
S&S finding and all other findings and agrees to pay the assessed penalty
of $15,570.00. Tr. 833.

WEVA
2014-620, Citation No. 7167471. This matter was contested.[31]
MSHA Inspector James Jackson was called for this citation. Issued March 6,
2013, this section 104(a) citation stated that “[a]dditional roof support is
needed at the MCI D-Box (S.N. 35966-99895-1-210), located at cross cut (sic) 39
on number 1 belt line. Roof bolts were found to be missing and damaged in this
area. Due to the damaged and missing roof bolts areas were found 6 feet to 13
feet 3 inches between roof bolts. This condition exposes miners to hazards
related to unsupported top. Miners are required to work and travel in this
area. Standard 75.202(a) was cited 9 times in two years at mine 4609086 (9 to
operator, 0 to a contractor).”

The
“D-Box” referenced in the citation is a power distribution box. Damaged roof
bolts referred to conditions where plates were not firmly against the mine roof
and some of the plates and bolt heads were snapped off. Tr. 836.  This was an
area where miners work or travel and they were exposed to unsupported roof. This
presented the risk of rock falling and hitting miners, exposing the workers to
the risk of a fatality. The unsupported area between the bolts presented the
risk of a fatality and the Inspector stated that it has been his experience
that even smaller rock falls can have fatal consequences. Tr. 837. Inspector
Jackson marked one person as potentially affected as one person would be
examining that area each shift and there is also exposure with the weekly
electrical examination requirement. People also travel through the area. Tr.

840. A need for maintenance of the D-box in that area or to reset breakers
     there would also present exposure. Tr. 840. Thus, the hazard was the
     unsupported area with rock falling, a condition he deemed to be reasonably
     likely to occur. The Court asked the Inspector to elaborate his view of this
     hazard. The Inspector advised that the “area was unsupported. The damaged
     bolts, there’s no way to tell how much of the bolt in the hole and the glue
     were still bonded. I felt that the area was unsupported and unstable, just from
     my experience in dealing with unsupported top.” Tr. 839. The Inspector added
     that the area’s location in or near an intersection added to his conclusion
     that the violation was S&S. The area had not been dangered off. Negligence
     was marked as “moderate” because the Inspector considered the condition to be
     obvious and the examiner should have seen it. Tr. 841. Further, due to the
     presence of rock dust and rust over the damaged bolts, the Inspector concluded
     that the condition had existed for some time. Tr. 841. Later, he expressed that
     the condition had existed for longer than that week. Tr. 850. The violation was
     abated by setting timbers in the area.

The
cross-examination noted that the area was sandstone and the Inspector agreed
that generally speaking, such rock is solid. However, the Inspector advised
that he has seen sandstone fall. Tr. 843. The Inspector did not retreat from
his statement that bolts were missing, even though advised that witnesses for
Brody would assert that only plates, not bolts, were missing. Tr. 846. He did
allow that it was possible that the bolt heads had been snapped off. Tr.

847. However, there is no way of telling how much of a bolt may remain in the
     roof. The bolts, Inspector Jackson reasserted, were to be on 4 foot centers at
     the cited location. Tr. 849.

Part
of the cross-examination contended that the area had been bolted seven years
earlier and that the D-Box had been located there for four years. Tr. 850-851. This
led to the assertion that in all that time no citation for this had been issued
previously. Tr. 852. The point of this was to contend that the area was quite
stable and therefore a roof fall unlikely. The Inspector’s response was that he
didn’t “have the privilege of knowing when a roof is going to fall, when it’s
going to fail.” Tr. 853, 855. He added that the roof was unsupported. Exposure,
he agreed, would not be from miners using the travelway, as the cited area was
not in a travelway. However, those examining the D-box would be exposed. On
re-direct, it was brought out that the roof control plan still applies,
sandstone or not and that roof falls can happen even where there is no obvious
adverse roof conditions. Tr. 860. Upon questioning by the Court, the Inspector,
referencing the drawing he created at page 12, stated that he found eight
missing bolts. Further, the Inspector confirmed that he found two areas of
discrete problems. Tr. 862.

Brody
presented Milton Aliff in defense of this matter. Mr. Aliff has long mining
experience. He identified the relevant preshift examiner’s report relating to
this matter, and that his signature appears on it. It was his testimony that
exposure to the unsupported roof would be very limited while conducting the
pre-shift exam. Tr. 873-876. Mr. Aliff also took issue with the Inspector’s
assertion of “missing” bolts, asserting that they were only “wide.” He also
stated that only the bolt plates were missing. Tr. 877. It was his position
that such bolts still provide support. He also stated that the roof in this
area was sandstone and that it is solid, and that “[t]he top [there] was quite
nice.” Tr. 880. To his knowledge, no other inspector had raised issues with the
roof in this area. However, Mr. Aliff revealed his perspective, when asked if
he believed “that the missing and/or damaged bolts constituted a roof-fall
hazard that was reasonably likely to injure anyone?” “No,” he responded,
“[b]ecause of the conditions that were there. [T]he top was still as solid as
it was the day it was mined. There’s no visible warnings; there’s no sounding
warnings there to indicate any type of failure in the roof.” Tr. 883.

On
cross-examination, Mr. Aliff agreed that preshift examiners, weekly examiners
and electricians performing maintenance would go to the D-box. And though, for
a time miners would be in a man bus, they would not be in the man bus while at
the D-box itself. Tr. 884. Aliff also conceded that the missing plates are
required to be present and that an unsupported roof presents a hazard. Tr.
885-886. Nor did Mr. Aliff like to go under unsupported roof, even if that roof
is sandstone. Tr. 886.

Based
upon the credible evidence of record, the Court finds that this violation was
established and that it was S&S. The Court finds that the roof bolts were
missing and damaged in this area as described by the Inspector. The condition
exposed miners to hazards related to unsupported top and as the Inspector
noted, he didn’t “have the privilege of knowing when a roof is going to fall,
when it’s going to fail.”

Still,
notwithstanding the above, when the entirety of the record is considered, and
applied to the statutory criteria, the Court finds that $4,000.00 is an
appropriate penalty and that amount is so imposed.  

WEVA
2014-620, Citation No. 7167473

For this
violation, the Secretary announced that it was removing the S&S
designation. The parties stipulated to all other aspects of that matter and
that the penalty would be derived by application of the Part 100 formula. Tr.

888. The Secretary states that amount is $3,144.00. Accordingly, that amount is
     imposed.

WEVA
2014-620, Citation No. 7165683

This
section 104(a) citation, issued by MSHA Inspector Timothy H. Crawford on July
24, 2013, and citing 30 C.F.R. §75.202(a), states that: “[t]he ribs where
persons work and travel are not being adequately supported or otherwise
controlled to protect persons from hazards related to rib falls. On the # 3
Section in the # 6 entry adjacent to the section feeder, a loose rib is found
to have separated from the immediate rib and is left suspended. The loose top
rock rib is measured to be 3  [feet] X 105” X
15” thick. This condition exposes the section miners who work and travel through
this area to hazards of being struck by the loose rock and is likely to result
in fatal injuries.  Standard 75.202(a) was cited 13 times in two years at mine
4609086 (13 to the operator, 0 to a contractor).” Gov. Ex. 24 A and 24 B.

The
Inspector noted the large, loose piece of top rock which “didn’t appear to be
held in place by much.” Tr. 890. The cited standard requires that the roof and
rib where persons work and travel be adequately supported or otherwise
controlled to protect persons from falls of roof or ribs. Upon finding the
condition, Inspector Crawford he immediately issued the citation and required
that the area be dangered off so that no miners could travel through that area.
Tr. 891. The Inspector marked the violation as “reasonably likely” and the
negligence as moderate. For the former finding he felt that the hazard of
miners being struck by roof or ribs and that the violation contributed to was
reasonably likely to result in an accident. He added that this was a heavily
traveled area of the mine and that the mine had several prior roof and rib
injuries. Tr. 892-893. The size of the rock was sufficient that it would result
in a fatal crushing injury. Moderate negligence was marked by the Inspector
because, while the condition was not so obvious from one direction, it was
fairly easy to detect when traveling outby. Tr. 894. A thin film of dust, where
the rock had separated, informed the Inspector that the condition had not just
occurred.  He also observed two rib bolts in that area but one wasn’t holding
the loose piece at all and it was located in the separation itself. Only about
1 foot of the other bolt was secured in the mine roof. Neither bolt secured the
rib. Tr. 895. Additional bolts were installed in the rib to abate the
condition. The Inspector elaborated on the significant number of miners who
were exposed to this loose rib. Tr. 897.

During
cross-examination the Inspector stated that the rib was in the entry, next to
the crosscut. In the Court’s estimation, both when it heard the testimony live
and again when reviewing the transcript, the cross-examination did not diminish
the Inspector’s testimony about the condition, as provided during the direct. Tr.
901-922, 924-930, 939-941. The Inspector did allow that the condition may have
existed for only a few hours and he considered the negligence to be moderate. Tr.

923. In response to questions from the Court, the Inspector provided additional
     testimony describing the hazard he found that day. The Court found the
     Inspector’s testimony to be quite detailed and he augmented his testimony by
     marking on the exhibit the dangerous area. The Court concluded that the
     Inspector’s testimony was very reliable. Tr. 930-93.

In
its defense of this citation, Brody called Virgil Hatfield, the individual to
whom this citation was served. Tr. 945. He did feel at any point that the rib
was in danger of falling. Tr. 947. He held this view because the rib had bolts
in it. Tr. 947. Mr. Hatfield also felt that there was very little exposure to
miners, expressing that “[n]obody really” travels in that area. Tr. 948. He
also believed that shuttle car traffic would be protected because of the
canopies on them. Further, he contended that when he and the Inspector took
measurements of the loose rib, they were “right at it,” thereby suggesting that
it really didn’t present much of a hazard. Tr. 949. Virgil Hatfield also
believed that the two bolts which were present were still supporting the rib
and that it wasn’t going to fall. Tr. 950. In sum, Mr. Hatfield’s testimony
presented a very different take on the cited condition, and he didn’t feel
there was a need to fix anything. The different recounting included the
abatement of it. For that, he stated that the Inspector told them to put bolts
in it. However, upon questioning by the Court, he advised that installing ribs
was the only way to abate it as a slate bar could not pull it down. Tr. 952. Further,
according to him, only two bolts, not five were installed to abate the
condition. Tr. 953. The Secretary did not cross-examine Mr. Hatfield.

Upon
consideration of the entire record and the making of necessary credibility
determinations, the Court finds that the violation was established and that it
was S&S. The condition exposed the section miners who work and travel
through this area to hazards of being struck by the loose rock and was likely
to result in fatal injuries. The Court finds that there was a reasonable
likelihood that the cited condition presented a reasonable likelihood that the
hazard contributed to will result in an injury and that it would be of a reasonably
serious nature.

Upon
consideration of the evidence of record and the statutory criteria, the Court
concludes that Citation No. 7165683 is affirmed and that the proposed penalty
amount of $11,306.00 remains appropriate.

WEVA
2014-620, Citation
No. 8155908 and WEVA
2014-620, Citation
No. 8155909.

The
testimony regarding these citations was presented together as they were based
on the same facts.

Citation
No. 8155908,
a 104(a) citation, issued by Inspector Jack Hatfield on April 4, 2013, to Brody
foreman Kevin Webb, states that “[t]he mine roof in the alternate escapeway
(mantrip roadway) designated by the operator adjacent to the Co. # 4B Belt is
not being maintained effectively controlled (sic) to prevent a roof fall hazard
to the workers that work and travel in this area each shift. Supplemental roof
support in the form of wooden cribs set by the operator in this area has
weathered away from the roof and has been dislodged by mobile equipment
traveling in this roadway rendering the supplemental roof support ineffective. This
condition creates a roof fall hazard and a hazard of the dislodged cribs
falling onto a worker travelling through this area.  Standard 75.202(a) was
cited 12 times in two years at mine 4609086 (12 to the operator, 0 to a
contractor). The negligence was marked as moderate. Gov. Ex. 25 A

Citation
No. 8155909,
the section 104(a) citation related to Citation No. 8155908, next above, also
issued on April 4, 2013 to Brody’s Mr. Webb by Inspector Hatfield, states that
“[a]n inadequate preshift examination has been conducted and entered in a
record for that purpose prior to the workers traveling underground along the
mantrip roadway (alternate escapeway) adjacent to the Co. #4B Belt. Supplemental
roof support in the form of wooden cribs have been dislodged by mobile
equipment and in some instances weathered away from the mine roof. This
condition contributed to by the inadequate examination creates a roof fall
hazard or the wooden cribs falling onto a passing worker. The record entered in
the book on the surface shows no hazards nor violation noted.  Standard
75.360(b)(11)(i) was cited 1 time in two years at mine 4609086 (1 to operator,
0 to a contractor).” Negligence for this citation was listed as moderate. Gov.
Ex 26 A.

Testifying
first to Citation No. 8155908, Inspector Hatfield stated that while
traveling up the mantrip roadway he noticed a dislodged crib. A crib provides
supplemental support, installed to assist the primary roof support. Upon
examining it, he found that it was leaning and it was not in contact with the
roof. He then noted that the roof in that area had cracks in its slate top. In
this area, he stated, there had been roof control problems and it was an area
of high concern about the roof. Tr. 963. The Inspector stated that he then
found three other places with cribs leaning. He pointed out the cracks in the
roof to Mr. Webb. These observations led him to conclude that it was reasonably
likely that there would be a roof fall from any of those four locations, which
fall could injure a miner. The cited conditions were in a travelway, which also
serves as the alternate escapeway.  Tr.965. Suffice it to say that the
Inspector identified various work activities which would occur in this area and
thereby create exposure to the cited condition. Tr. 966-967. Thus, he concluded
that the violation contributed to the hazard of a roof fall to those who work
and travel in that area. The Inspector also listed a permanently disabling
injury as expected injury. In terms of his S&S listing, the Inspector noted
the confluence of factors: multiple places with cribs leaning and the roof
conditions in that area. Tr. 967-968. He added that he observed roof fall
material in the areas of the problematic cribs, but his greater concern was
with the cracks in the roof. Tr. 969.  Marking the negligence as moderate, the
Inspector believed that it was obvious that the cribs had been struck by
equipment. He considered the fact that the mine had made efforts to control the
roof in this area, including input from MSHA’s Tech Support division, as
mitigation. However, the Court’s reaction to this was that it was generous to
consider those efforts as mitigation. Instead, the problems in the area could
be viewed as requiring heightened vigilance. As reflected in his notes, the
Inspector provided details about the location of the problematic cribs. Tr.
971-973. To abate the conditions, some cribs were repaired but some required
replacement.

On
cross-examination, it was asserted that there were a lot of cribs in this area
but the Inspector could not affirm that there 80 sets of cribs in that area.[32]
The cribs cited by the Inspector were at breaks 9, 12,13,and 17. Although the
Inspector testified about broken roof over the cribs and rock on the ground, he
did not include that in his notes, asserting that he would not normally include
such information. Tr. 981. Clarifying his earlier testimony, the Inspector
stated that three of the cribs had been hit with mobile equipment and one had
simply deteriorated over time. Tr. 982. Among the three leaning cribs, a
portion, one corner, of them was tight against the roof but they were leaning
and he believed that if they were hit again they would come down. Tr. 982. The
Inspector could not recall if he had been in the same area the day before. Tr.

984. Evidence consisting of notes from Brody’s Mr. Webb tends to support that
     the Inspector was in that area the day before he noted the problem with the
     cribs but the Inspector could not recall if he observed the cited conditions on
     the previous day.[33]
     Tr. 985-987.

A
separate challenge to the Inspector’s recounting involved why he permitted four
days to abate the condition, if it was as serious as he contended. The
Inspector speculated that the four days could be attributable to the end of his
40 hour work week. Tr. 989. The Inspector agreed that a large number of miners
used the roadway where he cited the condition. Given that abatement time he
allotted, he was asked how he concluded that the condition was S&S. The
Inspector responded that he did not consider it to be an imminent danger. Tr.

991. The Court interceded, noting that the question posed by Brody’s Counsel
     was fair and basic, given that many miners would be traveling in the cited area
     and given that he considered it to be S&S, how was it that he allowed four
     days for abatement. Tr. 993. The Inspector responded that a big percentage of
     those exposed would be on mantrips and he thought that the mine had begun steps
     to correct the problems right away. Tr. 993-995. The Court observes that the
     Inspector’s response did not explain the inconsistency between the conditions
     he observed, their severity and the response time he allowed. As the Court
     stated at that time, “[the inspector] has not come up with a good answer for
     this.” Tr. 995.

Inspector
Hatfield then testified with regard to the second, related, citation, No.
8155909. The Inspector stated that the same conditions he noted with regard
to Citation No, 8155908 led him to issue the second citation. As noted above,
this second citation deals with the preshift examination requirement and the
Inspector believed that the examiner should have noted the condition. In this
regard, the Inspector referenced the “rules of nine” which pertains to nine
standards that should be included in preshift exams, as those standards were
often linked to fatalities. Tr. 1007. After finding the alleged violative
conditions, the Inspector later checked the preshift exams but found no listing
of those conditions. Tr. 1009. The Inspector believed that the inadequate roof
exam contributed to a roof fall hazard that the preshift examiner should have
detected and recorded in the record book. He marked the violation as S&S
because it contributed to the exposure to the hazard of falling roof in the
area where the cribs were dislodged. Tr. 1010. He also considered the obvious
nature of the cribs warranted a moderate negligence finding.

As
noted, as the citations were discussed together, the cross-examination
pertained to both matters as well.  When asked the basis for concluding that
the cribs were dislodged at the time of the preshift exam, the Inspector stated
it did not look to be recent and that, more likely, it had existed for a couple
of days. He again stated that he did not observe the condition the day before
or he would have cited it at that time. He did not agree with the contention
that an examiner could have simply missed three or four cribs among 80 in that
area, though he did not observe the problem the day before. His explanation for
this was that he would’ve been focusing on other concerns the day before, such
as looking at ventilation controls. Tr. 1014.

In
its defense to these matters, Brody called Kevin Webb back to the stand. Stating
that the cited conditions were in an area of about 800 feet, Mr. Webb described
the cribs as “weathered.” Tr. 1020. They were located next to the travelway,
but he maintained that only one of them was dislodged. Tr. 1021. Importantly,
from his perspective, three of the four points of the crib were still
supporting the top. Tr. 1022. He estimated that there were between 60 to 80
cribs in this eight break span where the problems were found. The cribs were
part of supplemental roof support installed in this area.[34]
Tr. 1023. Mr. Webb then proceeded to identify a number of supplemental roof
supports that were installed in the cited area. This prompted the Court to
inquire whether this line of inquiry was helping, or actually hurting,
the Respondent’s defense. After all, those supplemental supports, in the
Court’s view, tended to show how problematic things were in the cited area. Tr.
1029.

Questioning
then turned to Mr. Webb’s notes of April 3, 2013. Ex. R 16 D. The notes were
offered to show that the Inspector had been in the area the day before he
issued these citations. Tr. 1031. The Inspector made no mention of any problems
in that area on that day prior to issuing the citations. Webb also stated that
it was possible that the one dislodged crib could have occurred after the
preshift was done. As for the three cribs he described as “weathered,” Webb
asserted that it would be easy to miss those conditions. Tr. 1035. Importantly,
Mr. Webb stated that the Inspector advised him that he had noticed the
problematic cribs the day before he issued the citations and that this was the
reason he stopped that day to check on their condition. Tr. 1036. The cited
conditions were abated in about a half hour and Webb confirmed that four days
were given to abate them. In that interval the area was not required to be
dangered off. Webb agreed that the cited area was in fact heavily traveled. Tr.
1038. Mr. Webb did not feel that the conditions were S&S because there were
so many other things there to support the roof. Tr. 1039. He also stated that
there was no loose rock present. Tr. 1040.

On
cross-examination, Mr. Webb was directed to Ex. R 16 E and its notation that
states: “see cribs, need cribs . . . recapped, 4B.” Tr. 1041. Webb acknowledged
this was noted once he and Inspector Hatfield had gone outside the mine. Upon
further questioning, this time by the Court, Mr. Webb agreed that the reference
in that exhibit to “need cribs” was written after the citation for an
inadequate preshift. Tr. 1043. However, Webb maintained that this was written after
the inadequate preshift citation was issued and that it did not reflect
that the condition had been noted before it. Tr. 1044.

Brody
then presented a second witness regarding these two citations. Mr. Jay Heiss, a
fire boss at Brody testified. Heiss was the individual who made the relevant
preshift examinations for these citations. He stated that examining the cribs
is part of his responsibility for a preshift. Tr. 1051. Heiss stated that he
did not observe any weathered cribs at the time he did his preshift exam on
April 4th.  He also did not agree there was a dislodged crib. Tr.
1052. Heiss stated that he saw no hazardous roof conditions during that
preshift exam. Tr. 1053.

Upon
cross-examination Mr. Heiss stated that he was not with the Inspector nor Mr.
Webb when the citations were issued.

At
the conclusion of the testimony for Citation No. 8155909, the Court
announced that it was dismissing that citation alleging an inadequate preshift
examination. Tr. 1055.

As
for Citation No. 8155908, the Court finds that the violation was
established but that the S&S characteristic was not demonstrated.  This
necessarily involved credibility determinations as well.  Upon consideration of
the entire record, the Court also finds the negligence to be low, and taking
into account the statutory criteria, a civil penalty of $800.00 is imposed.

The
proceeding then moved to other matters. Citation No. 8155925, pertaining to
WEVA 2014-620, Gov. Ex. 27, was announced as settled. The citation was modified
to a non-S&S matter and accordingly to “unlikely” with the penalty
adjusted per the Part 100 formula. Tr. 1056. Pursuant to that Brody has agreed
to accept the citation as modified and as otherwise issued and has agreed to
pay a penalty of $ 1304.00, as calculated under Part 100 assuming a gravity
finding of unlikely and using the penalty points as set forth in penalty docket
WEVA 2014-620.

Citation
No. 8155926, also within WEVA 2014-620, was also modified to a non-S&S violation,
with the penalty to again be calculated per the Part 100 formula. Gov. Ex. 28. Tr.
1056. Brody has agreed to accept the citation as modified and as otherwise
issued and has agreed to pay a penalty of $ 688.00, as calculated under Part
100 assuming a gravity finding of unlikely and using the penalty points as set
forth in penalty docket WEVA 2014-620.

Citation
No. 8155936, again within WEVA 2014-620, Gov. Ex. 29, was also modified to non-S&S,
with the penalty to again be calculated per the Part 100 formula. Tr. 1057. Brody
has agreed to accept the citation as modified and as otherwise issued and has
agreed to pay a penalty of $ 3144.00, as calculated under Part 100 assuming a
gravity finding of unlikely and using the penalty points as set forth in
penalty docket WEVA 2014-620.

Citation
No. 8155937, within WEVA 2013-1189, Gov. Ex. 30, was also modified to non-S&S,
with the penalty to again be calculated per the Part 100 formula. Tr. 1058. Brody
has agreed to accept the citation as modified and as otherwise issued and has
agreed to pay a penalty of $ 1658.00, as calculated under Part 100 assuming a
gravity finding of unlikely and using the penalty points as set forth in
penalty docket WEVA 2013-1189.

Order
No. 9000277, within WEVA 2014-0619, Gov. Ex. 31, a section 104(d)(2) order,
alleging an unwarrantable failure, was settled, and affirmed in all respects,
but with a penalty reduction from $66,142.00 to $52,913.60. Although initially
accepting the proposed reduction, the Court later instructed that additional
information would have to be provided to justify the proposed reduction. Tr.
1060. The Secretary has complied with the Court’s direction, supplying
sufficient additional information so that the Court can meet its statutory
obligations pursuant to Section 110(k) of the Mine Act. The settlement is
therefore approved.

Order
No. 9000278, within WEVA 2014-0619, is the related preshift to Order No.
9000277 and was also settled. The original proposed penalty was $18,742 and the
agreed penalty is $14,993.00.[35]
Tr. 1061. The parties have agreed to resolve this Order for the same reasons
and based on the same circumstances as set forth in the settlement of Order No.
9000277. Accordingly, the Secretary has complied with the Court’s direction,
supplying sufficient additional information so that the Court can meet its
statutory obligations pursuant to Section 110(k) of the Mine Act. The settlement
is therefore approved.

Order
No. 9000304, within WEVA 2014-0619, Gov. Ex 33, and Citation No. 9000307,
within WEVA 2014-620, Gov. Ex. 34, were disputed matters.  MSHA Inspector Jack
Hatfield testified regarding these matters.

A section 104(d)(2) order, No. 9000304,
issued July 24,2013, stated: “An inadequate preshift examination has been
conducted and recorded on the surface prior to the workers traveling
underground to the new 1 Section Panel where workers are observed performing
work on this day. The record of the examination states that ‘section moving
under construction’. On this day hazards of loose unsupported slate and broken
rock/coal brows are found on the new 1 Section Panel. These adverse roof
conditions are obvious and required dangered off or correction immediately. Equipment
has been moved to this new panel and work was being performed for the beginning
of second mining. This panel has set for an extended time with no evidence of
rehabilitation prior to moving mining equipment to the new section. This
inadequate examination exposes the workers to roof and rib falls while
performing work. Four of the thirteen disabling accidents reported to MSHA from
this mine this year have been from roof falling onto the workers. This action
exhibits conduct which falls below a standard of care established by the Mine
Act to protect the workers against the risks of harm. This mine operator has
engaged in aggravated conduct constituting more than ordinary negligence by not
conducting an adequate examination and correcting these roof and rib fall
hazards. This citation is unwarrantable failure to comply with a mandatory
standard. Standard 75.360(b)(11)(i) was cited 5 times in two years at mine
4609086 (5 to the operator, 0 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.” Gov. Ex. 33A.

The Order marked the negligence as
“High,” with the gravity as S&S and fatal, with one person affected. Inspector
Hatfield issued the Order to Brody foreman Jamie Lester. Tr. 1063. The
Inspector stated that, during the course of his E01 inspection he could not
find anything to show that a preshift examination had been conducted for the
area where they were moving, called the new 1 section. He found information for
July 23rd, but nothing for July 24th.  In this area, as
the mine started pillaring back, they decided to put belt in that panel and
pull pillars there. Tr. 1064. Hatfield, upon checking on the surface, found no
record that a preshift had been done for that area. Tr. 1064-1065. The
Inspector then traveled to that section and found that they had produced coal
there on the day shift. This conflicted with the preshift report which only
indicated that the section was moving. Tr. 1065.  Jamie Lester, evening shift
foreman, accompanied the Inspector. Upon arriving at what the Inspector called
the new 1 section, which was located third right off of 4 south, he found
problems with the roof. He observed broken ribs, and the roof was broken. He found
bad roof conditions, loose, broken roof, slate and a “monster” rock brow[36]
at the No. 8 entry. The Inspector expressed that the mine failed to do rehab
work before moving up there but just went ahead. Tr. 1066. The Inspector stated
that the broken roof was “just about everywhere.” Tr. 1070. It was his opinion
that the mine had done nothing to try to scale the rock and no spot bolting had
been done either. In terms of the size of the cited area, the Inspector said it
covered approximately eight entries. He observed miners working in the cited
area. Tr. 1073-1074. He did not observe workers at the monster brow however. While
Inspector Hatfield had quite a tendency to ramble in his answers, his point was
that the mining activity he observed and the problems with the roof he found
were not recorded in the preshift examination. In terms of the evidence that
mining was ongoing, the Inspector stated that the miners were hanging cables
and the continuous miner had been moved from the move up box to where it was
positioned to start mining coal. Tr. 1076. He explained his S&S finding as
based on a confluence of factors, with so many things wrong on the section that
it was reasonably likely that an accident would occur. Tr. 1076-1077. He added
that the problems he found went beyond the roof conditions. Tr. 1077. He
believed that the preshift exam should have noted ventilation problems. Although
the Order doesn’t include it, when asked if the preshift should have included
issues regarding emergency access, such as a first aid kit or shelter, the
Inspector responded: “The shelter should have been noted in the - - in there. And
the escapeway, the alternate and primary escapeway, markings, your lifeline and
that, should have been in [the preshift examination book].” Tr. 1079. Despite
the detours to other issues, the Inspector returned to the roof conditions as
his primary concern. Tr. 1079-1080. He considered the failures to list the
problems to be unwarrantable failure, aggravated conduct with no mitigating
factors. The matter was abated by moving the workers off of the panel and by
marking the areas needing scaling.

The direct examination then proceeded to
the related violation so that the cross-examination could cover both issues
together. Accordingly, Inspector Hatfield was next directed to Gov. Ex 34. The
related Citation, citing 30 C.F.R. §75.202(a), requires that roof and ribs be
adequately supported to protect miners from rib or roof falls. Inspector Hatfield
believed that the roof conditions he observed presented a roof fall hazard for
those working on that section that evening and that a fatal accident could
reasonably be expected. Tr. 1084. It was noted that the Inspector issued this
alleged violation five days after the related preshift violation. Though hard
to follow, the Inspector essentially stated that he would have issued the
75.202 violation sooner but that the situation was “so ugly” that he “brain
locked” and that this accounted for his delay. Tr. 1088. Regrettably, the Court
finds that this explanation dubious. In attempting to better understand his
testimony, the Court learned from the Inspector that when he issued the 9000307
citation some of the roof problems had been corrected when it was issued. Tr.
1089. By 1530 on July 29, 2013, all of the roof issues had been abated. Tr.
1090.

In
the cross-examination, it was revealed that, at least in part, the decision to
issue the Citation No. 9000307 roof violation was the product of a discussion
between the Inspector and his supervisor. Tr. 1095-1096. However, the Court
views this as a non-issue. The citation either stands or falls based on the
Inspector’s testimony of the conditions he observed and the Court’s evaluation
of that testimony along with the testimony of other witnesses regarding that
matter.

In
other cross-examination matters, regarding the alleged preshift exam violation,
Brody noted that the section was being moved. An issue was whether work was
being done in what was referred to as the old No. 1 section or the new No. 1
section. It was Inspector Hatfield’s position that the preshift exam documents
were confusing and that Brody could not show him where the workers were at the
time of that exam. Tr. 1100. Directed to that preshift exam, dated July 24,
2013, Respondent’s Exhibit 17 D, performed by Brody’s John Pauley, Inspector
Hatfield agreed that was the preshift exam he deemed to be inadequate. Tr.
1101-1102. Hatfield did not speak with Pauley before issuing the alleged
preshift violation. Tr. 1104. The point Brody was urging was that, in the
process of a section move, areas where miners work or travel is constantly
changing and that a preshift examiner might not, in such circumstances, be able
to anticipate all the areas the miners might be in that process. Inspector
Hatfield, somewhat hesitantly, agreed. Tr. 1106. However, it was the
Inspector’s position all the equipment involved used the same pathway from the
old to the new section, and that Brody could not show him the dates, times, and
initials to establish that a preshift was done prior to the miners coming up to
the new section. Tr. 1106. The Inspector agreed that the move to the new
section had not been completed. Tr. 1109. He asserted that the continuous miner
was at the new section and the belt was installed, and that 4 MRS units, a roof
bolter and three shuttle cars were there but there was no power center yet. Tr.
1109, 1113. Hatfield maintained that the broken roof and broken rock brows
where in the area where the equipment had been moved. Tr. 1114. While the
continuous miner might have been parked in a safe location, the Inspector
maintained that it had to past the hazardous area to arrive at the safe location.
Tr. 1114-1115.

Inspector
Hatfield acknowledged that Brody’s Dave Morris told him that he was making an
exam of the area where the order was issued. Morris agreed with the Inspector
that the area needed some work.  Tr. 1116. He agreed that Morris was using red
spray paint, marking off dangerous areas. Tr. 1118. Hatfield was of the view
that Mr. Morris was not conducting a supplemental examination of the area, but
rather was conducting an on-shift exam. Tr. 1119.

In
response to the suggestion of Brody’s Counsel that not was going to be
performed yet up on the new part of the panel, the Inspector disagreed, stating
that they “were hanging cables with anticipation of moving the feeder and the
transformer up onto the section, and the equipment had already been moved up
there.” Tr. 1121. Miners told the Inspector that they were hanging cables and
moving equipment. Tr. 1123. To the suggestion that Mr. Morris had already
performed an examination of the areas where the miners had been working, the
Inspector responded that if that was the case there was no evidence of such an
exam by his certification with dates, times and initials. Tr. 1124. Hatfield
stated that if work has been planned, you can’t do a supplemental exam; a
preshift exam is required in such circumstances.

Brody
called James Allen Lester, shift foreman, in its defense of these matters. He
recalled the events associated with them and he traveled with Inspector
Hatfield at that time. Tr. 1136. Mr. Lester maintained that he saw dates, times
and initials to show that the area, the new No. 1 section, had in fact been
examined prior to miners entering it and that they were the initials of Eddie
Puckett. Tr. 1137. He then added seeing the initials of Willis Dickens in the
area before one turned up on the new section. Tr. 1137. The Secretary posed no
questions of the witness.

The
Court finds that these violations were established, but that neither was
S&S, nor was there an unwarrantable failure established. It must be
remembered that the burden of proof is on the Secretary. It is found that,
under the preponderance standard, matters were unclear as to the state of
mining, whether a preshift was done and as things evolved whether a
supplemental shift was underway. Credibility determinations, partially adverse
to the Secretary, played a role in the Court’s determinations too.

For
Order No. 9000304, within WEVA 2014-0619, the alleged inadequate preshift
examination, the Court finds that the preponderance of the evidence supports
that this Order was properly issued but that the findings of unwarrantable
failure, high negligence, S&S, reasonably likely, fatal and one person
affected are supported were not. A civil penalty of $5,000.00 is assessed.  As
a further consequence, the citation is modified to a section 104(a) citation.

As for Citation No. 9000307, within WEVA
2014-620, a section 104(a) citation, which is based on the same essential
facts, a $4,000.00 penalty is assessed.

Additional
matters which were settled by the parties:

Citation
No 7167412, Gov. Ex. 8A was settled, with the Secretary
agreeing to delete the S&S designation. The citation was accepted as
otherwise written and the penalty agreed to be the amount derived from
application of the Part 100 regulations. Tr. 488. That amount is $5,080.00.

Citation
No 7167474 from WEVA 2013-997, with the Secretary agreeing to delete
the S&S designation. The citation was accepted as otherwise written and the
penalty agreed to be the amount derived from application of the Part 100
regulations. Tr. 553.

Citation
No. 9000286 from WEVA 2014-0620, a section 104(a) citation, relating to
an intake escapeway not being properly maintained, was settled as issued,
including accepting the S&S finding and paid at the proposed amount of
$3,405.00. Tr. 643.

Citation
No. 7165680, WEVA 2014-0620. Brody accepts this citation, as
issued, including the S&S finding. This includes agreeing to pay the
proposed penalty of $29,529.00. Tr. 644.

Order
No. 9000305, WEVA 2014-0619. Brody accepts this violation as
issued, including the S&S finding but with mitigating factors, the penalty
was reduced from $53,858 to $43,086. That violation cited section 75.1506(c)(1)
requires refuge alternatives to be maintained within a thousand feet of the
face and that the section was being moved at the time of the Order’s issuance
and the mine had not resumed production. Tr. 646. The Secretary presented
adequate justification to the Court for the reduction in the proposed penalty.[37]

Citation
No. 9000309, WEVA 2014-620. For this 104(a) citation the Secretary agreed to delete
the S&S finding. Brody otherwise accepted the citation as issued and the
parties agreed that the penalty will be the amount derived Part 100. Tr. 647.

The
following citations/orders were presented during October 7th through
October 9th, the third week of the hearings in these matters.[38]
Several of the citations/orders set for the third week of the hearings were
settled and the terms of those settlements were later stated on the record.

Also
addressed were settled matters from the first two weeks of the hearing:  They
are as follows:

First
is Citation No. 7167412. That is contained in docket No. WEVA 2013-997.

The
parties agree to modify that to delete the S&S finding.

The
next is Government Exhibit 10, in citation No. 7167474 contained in docket No.
WEVA 2013-997. The parties agree to delete the S&S finding for that
one.

The
next is Government Exhibit 12, in citation No. 9000286. That is part of penalty

docket
WEVA 2014-620. Brody agreed to accept that one as issued, including the S&S
finding.

The
next is Government Exhibit 13, in citation No. 7165680, contained in docket No.
WEVA 2014-620. Brody agreed to accept that one as issued.

Next
is Government Exhibit 14, citation No. 9000305, contained in docket No. WEVA
2014-619. And the company agreed to accept that one as issued.

Government
Exhibit 15, citation 9000309, contained in docket WEVA 2014-620. The Secretary
agreed to delete the S&S finding on that one.

Government
Exhibit 19, citation No. 8151320, contained in docket No. 2013-997. The company
agreed to accept that as issued.

Government
Exhibit 20, citation No. 7168801, docket No. WEVA 2013-370. The company agreed
to accept that as issued.

Government
Exhibit 21, citation No. 7168899, contained in docket No. WEVA 2014-620. The company
agreed to accept that as issued.

Government
Exhibit 23, No. 7167473, contained in docket WEVA 2014-620. The Secretary
agreed to delete the S&S finding.

Government
Exhibit 27, citation No. 8155925, contained in docket WEVA 2014-620. The Secretary
agreed to delete the S&S finding.

Government
Exhibit 28, citation No. 8155926, contained in docket WEVA 2014-620. The Secretary
agreed to delete the S&S finding.

Government
Exhibit 29, citation 8155936, contained in docket WEVA 2014-620. The Secretary
agreed to delete the S&S.

Government
Exhibit 30, No. 8155937, contained in docket WEVA 2013-1189. And that is to be
modified to delete the S&S.

Government
Exhibit 31, citation 9000277, contained in WEVA 2014-619. The company agreed to
accept that as issued.

Government
Exhibit 32, citation No. 9000278, contained in docket WEVA 2014-619. The company
agreed to accept that one as issued.

In
terms of penalty assessments, Brody has stipulated that it is a very large mine
and the government has submitted R 17 reports for each of the matters
litigated. Tr. 1166.

All
of the following exhibits pertain to assessed violation histories:

Government
Exhibit 1-D, pertaining to citation 8153617

Government
Exhibit 2-F, pertaining to citation 7167386.

Government
Exhibit 3-G, pertaining to citation 7167387.

Government
Exhibit 4-E, applies to two citations, 7167388 and 7167389, which were both
issued on the same day, so the same history applies to both.

Government
Exhibit 6-E, relating to citation 7167393.

Government
Exhibit 7-E, pertaining to citation 7167405.

Government
Exhibit 9-D, relating to citation 7168854.

Government
Exhibit 11-E, pertaining to citation No. 8155914.

Government
Exhibit 16-D, pertaining to citation No. 9000313.

Government
Exhibit 17-C, pertaining to citation No. 7165694.

Government
Exhibit 18-C, relating to citation No. 7166781.

(Government
Exhibits 1-D, 2-F, 3-G, 4-E, 6-E, 7-E, 9-D, 11-E, 16-D, 17-C, and 18-C, were
all admitted. Tr. 1168.)

III.            
Alleged
Ventilation and Methane Violations; Conditions and/or Practices contributing to
Ventilation and Methane Hazards

For the third week of the hearings, the
citations/orders all involved alleged ventilation hazards. It was noted that in
some instances a given inspector may have marked an alleged violation as a
safety hazard but that health issues may attend those as well, as reflected in
the inspectors’ notes. The Secretary moved to amend those citations to conform
to the evidence.  In response, the Court expressed that it did not intend for a
clerical omission to override the attendant facts, but that any final ruling
would have to await consideration of any objections that Brody may raise. Tr.
1172.

The
proceeding then addressed settlements reached by the parties for some matters
as follows:          

Citation No. 8125045 in Docket No. WEVA 2013-997. Government Exhibit 35,
was settled. The Secretary has agreed to drop the S&S, to modify the
gravity from reasonably likely to unlikely, to reduce the penalty from 21,442
to 4,329. That penalty was calculated on the gravity, if you reduce the gravity
from reasonably likely to unlikely, that knocks 20 penalty points off the regular
assessment, which this was. Brody agreed to accept the citation as modified and
as otherwise issued and has agreed to pay a penalty of $4,329.00, as calculated
under Part 100 assuming a gravity finding of unlikely and using the penalty
points as set forth in penalty docket WEVA 2013-997.

Citation
No. 8139621 in penalty docket No. WEVA 2014-620. Government
Exhibit 36 was also settled with the Secretary agreeing to drop the S&S
and reduce the gravity from reasonably likely to unlikely. Tr. 1173-1177. Brody
agreed to accept the citation as modified and as otherwise issued and has
agreed to pay a penalty of $1,944.00, as calculated under Part 100 assuming a
gravity finding of unlikely and using the penalty points as set forth in
penalty docket WEVA 2014-620.

Order
No. 8154782, from Docket No. WEVA 2014-619

The
first contested Alleged Ventilation and Methane Violation matter for
week 3 was Order No. 8154782, issued June 5, 2013, from Docket No. WEVA
2014-619. Gov. Ex. 37A. MSHA Inspector Timothy Workman, the issuing inspector
for this matter, testified. The condition or practice listed for this states:
“The Approved methane dust control portion of the ventilation plan was not
followed on the 004-0 MMU Section. The plan requires 8500 cfm of air to be
maintained behind the exhausting line curtain where the continuous miner is
operated in the face, when checked by the inspection party the 216 continuous
miner was mining in the #2 entry and only 3259 cfm of air was present behind the
exhausting curtain. The distance from the face to the last row of bolts
measured approximately 27 feet. This violation of a mandatory standard
contributes to hazards of methane ignitions, explosions, and hazards associated
with exposure to dust that is reasonably likely to result in fatal injuries. The
exposure to this measure of danger includes but may not be limited to: The 13
persons that worked on the section this shift when the violation was observed. This
is a 5 day, 103i, methane spot mine. The operator was also cited for failure to
maintain cutter drum bits (reference citation 8154784). This violation is an
unwarrantable failure to comply with a mandatory standard. The mine operator
has engaged in aggravated conduct constituting more than ordinary negligence in
that the violative condition existed for a period of time. The section foreman
had reason to know of the condition in that, the foreman was aware that
ventilation controls had been altered on the section approximately 20 minutes
prior to MSHA arriving on the section, by removing a solid curtain between the

5 and # 6 entries, short circuiting the air on the dual MMU #3 Section where

the 005-0 and 004-0 MMU’s operate. The foreman did not notify the continuous
miner operator to turn off the equipment when the ventilation controls were
altered and did not ensure that proper ventilation was maintained in the # 2
entry during and after the alteration to the ventilation curtain. The mine has
been cited 63 times in two years for violation of 75.370(a)(1) and should be on
heightened alert for this type condition. Standard 75.370(a)(1) was cited 63
times in two years at mine 4609086 (63 to the operator, 0 to a contractor).” Gov.
Ex 37A.  

Inspector
Workman was at the mine on that date during a section 103(i) spot or “impact”
inspection. Such inspections are designed to be intensified with the idea of
trying to see the actual mining conditions. Tr. 1183. The primary purpose of a
spot inspection is to check things associated with methane liberation and
ventilation. Tre. 1185. This mine is on a 5 day spot because it liberates more
than 1 million cubic feet of methane in a 24 hour period. The Inspector stated:
“As I approached the No. 2 entry, where I could hear a continuous miner operating,
I observed dust coming back into the intersection of the entry as the
continuous miner was leading the shuttle car. And when I viewed the dust, I
approached the miner, and the shuttle car left.    I told the continuous miner
operator I wanted to take an air reading.” Tr. 1186. Elaborating, the Inspector
stated that he “was traveling across the section, through the crosscut, and
observed that dust [was] coming out on the entry w[here] the continuous miner
was loading.” Tr. 1187.     He saw “dust traveling out of the entry back into
the intersection. And the dust was about the consistency of fog.” The fog of
dust covered an area between the curtain and the rib, where the shuttle car and
the continuous miner operator was.” Tr. 1187  

Upon
viewing the dusty conditions, the Inspector approached the continuous miner
operator, who turned off his machine. He advised that he was going to take an
air reading.    Tr. 1188. The methane monitor on the machine had a readout of
0.4 at that time. Tr. 1189-1190. He found the continuous miner towards the
working face and the curtain was with the outspacing towards the curtain and
the rib. This meant that the continuous miner was to the Inspector’s right,
towards the face and the curtain was hung on the left rib. Tr. 1190. The
curtain was 35 inches away from the left rib. Twenty-seven feet had been taken
out of the cut. Tr. 1191. By his estimation, they were approximately two-thirds
done with that cut. Tr. 1192.  The Inspector’s “air reading was taken between
the curtain and the rib on the exhausting side of the curtain, at the end of
the line curtain.” Tr. 1192. He described in detail the method he employed in
taking his anemometer reading. The readings are reflected in his Order, No. 8154782,
which is quoted above.

Once
he had taken his reading, the Inspector informed Brody’s Shannon Dolin of the
results, who then began taking his own air reading. Tr. 1200. At the same time,
he saw that some miners began taking corrective actions on the curtain, by
tightening it up and extending it. Tr. 1200. Even with those actions, Dolin’s
reading was 5723, which was still low. The Inspector made it clear that the
corrective actions, undertaken as Dolin was taking his own reading, would have
helped increase the air reading he obtained. Tr. 1201.

Inspector
Workman stated that he had several hazard concerns associated with the
condition he observed: accumulations of methane due to the diminished
ventilation and exposure to dust, which presented health and safety issues. Tr.
1201-1202. With low air, the ability to sweep out methane is diminished. Tr.
1205. If methane levels reach 1 % the operator is required to take additional
steps. Tr. 1205-1206. Those levels were not present, but a point of the
ventilation requirements is to prevent them from developing. Methane
liberations, he explained, are not consistent and one can’t predict how quickly
accumulations of methane can develop. Tr. 1207. It was mentioned again that the
Brody mine is a high methane liberating mine. Spot inspections, intended to
deal with such issues, can be at 15, 10 or 5 day intervals. As noted, the Brody
mine inspections occur with the highest frequency, at 5 day intervals.[39]
Tr. 1210.

The
Inspector stated that when he came to the entry, immediately before he issued
Order No. 8154782, the continuous miner was operating in the No. 2 entry in the
location where he found the low air. Tr. 1216. That low air was traveling up
into the cut where the continuous miner was working and then being exhausted
behind the line curtain. There were ignition sources identified by the
Inspector: electrical equipment, the continuous miner itself, and the shuttle
car were named. The condition of the cutter drum bits on the continuous miner
were of concern too, as an additional ignition source and a citation was issued
for that. Tr. 1218-1220. Citation No. 8154784, Gov. Ex. 37 E, Tr. 1222. (The
cutter bit issue, while related and admitted to the record as part of the
broader picture for Order No. 8154782, is not part of the Secretary’s pattern
claim. Tr. 1223.) Among the approximate 81 bits, because there is some bit redundancy
in the cutting drum, not every one of them has to be perfect, but in this
instance several bits were missing in a general location and such a condition
increases the likelihood of an ignition, if methane was encountered. Tr. 1220-1221.
Thus, a concern was, with the low air, and the issue with the bits, matters
were made worse. Tr. 1221-1222.

Regarding
the Inspector’s marking the Order as S&S, he expressed that the low air he
found contributed to the measure of danger related to the methane hazard. A
methane ignition would be reasonably likely to result in an injury and such
injury would be of a reasonably serious nature. Tr. 1231. Thirteen miners, as
noted in the Order, were exposed to that risk in the cited area. Tr. 1232. Under
certain, limited, situations, namely at a shift change, that number could
double. In sum, the Inspector found, within the same general time frame, the
low air, the 0.4 (i.e. one half of one percent) percent methane, the defective
methane detector, and the cutter bit issue. Those were the factors which the
Inspector considered to be in confluence. Tr. 1234-1235. However, the Court
expressed that the defective methane detector, while an important concern, was
not properly part of the S&S analysis for this matter. Tr. 1236. Continuing
with the Inspector’s testimony, Workman stated that the dust he encountered
itself contributed to the hazard of a methane ignition, as coal dust itself can
ignite or explode. The hazard is only increased with the presence of methane.
Tr. 1237. Further, an explosion can occur in such circumstances, even where the
methane has not reached the explosive level range. Tr. 1237.  There was also,
in the Inspector’s estimation, a visibility hazard present. Here, there was
dust coming into the area where the shuttle car and the continuous miner
operator were working. The dust created a visibility issue and increased the
risk that the miner operator could be struck by the shuttle car operator.[40]
Tr.1241-1242.

The
Inspector affirmed that his S&S finding was based on two, independent,
grounds: safety and health concerns. Tr.1243. For the latter, he was concerned
about the exposure to respirable dust and how such dust can lead to lung
diseases. Tr. 1243-1244. Both the continuous miner and the shuttle car
operators were exposed to that dust. This mine is also subject to a reduced
dust standard. The usual dust standard is 2.0 but the reduced dust standard in
that area is set at 0.9. This lower standard is used where quartz silica is
present. Quartz makes respirable dust significantly more hazardous to inhale. The
concern is lung disease from such exposure, silicosis and pneumoconiosis,
disabling and fatal consequences. Tr. 1244-1248.

To
abate the low air problem, several steps were required, as adjustments to the
line curtain did not solve the issue and other ventilation controls were
required. Tr. 1248-1249. It was discovered that ventilation controls had been
moved in order to move equipment in the area but that it had not been reestablished.
Tr. 1250. The Inspector marked the violation as an unwarrantable failure
because the mine failed to install the fly pads properly and the condition had
not just occurred. The ventilation controls had been knowingly removed by the
section boss. Production should have been shut down until the controls had been
reestablished. Further, it was not a simple fix; it took an hour to get things
right. Tr. 1251-1252.  

Upon
review of the cross-examination, addressing things such as that continuous miner
methane monitor was working properly, that no issues were encountered during
the inspector’s imminent danger run, the location of the continuous miner to
the right rib, that about two-thirds of the cut had been completed, that a
shuttle car was being loaded when he entered the area, attempts to claim that
the face was idle at the moment the inspector observed the problem, subsequent
air readings, the suggestion that the low air existed for no more than 20
minutes, that the inspector did not actually see the bits striking the face
when he issued the citation for that problem, and the communication between the
continuous miner operator and the shuttle car operator, among other topics, it
is the Court’s opinion that such questioning did not diminish the Inspector’s
testimony on direct examination. (Tr. 1254-1291). The subsequent redirect and
the re-cross examination did not alter the Court’s view of the testimony. Tr.
1291-1301.

In
its defense of this matter, Brody called Shannon Dolin, shift foreman. He was
present with the inspector at that time. Dolin stated that the miner was
backing out of the No. 2 entry at the time and was not cutting coal at that
moment they arrived, nor was the shuttle car being loaded. Tr. 1305.  Instead,
he maintained that the miner was preparing to go to another entry. Thus, there
was a direct conflict in the testimony on this point. The difference in the
accounts matters, as the air need only be 3,000 when not cutting or loading. Dolin
considered such circumstances to be an idle face. Tr. 1307.  He also stated
that the odd manner in which the Inspector took his air reading caused him to
act as if he were a regulator, albeit a human regulator, but with the effect of
blocking the air. Tr. 1309. Dolin also stated that the continuous miner’s
position was not sitting straight as it would be if it were mining and loading.
Tr. 1310. Thus, Dolin’s testimony was that because they weren’t cutting coal
and because the measurement itself was compromised in the way it was taken,
there was no violation. Tr. 1311. In addition, Dolin’s own measurement, taken
right after, and with no ventilation changes yet made, was 5500. Tr. 1312. The
air reading taken before any coal was cut that day was 9,310. R’s 19 C. Tr.
1314. A production sheet report for June 5th reflects that coal was
mined from 8:40 to 10:00 a.m. that day, with the next cut occurring from 12:20
to 1:20 p.m.  R 19 E. Dolin stated that, though permitted, no deep cuts were
being made on that day. He stated that the cuts had been shortened to control
the top better. Tr. 1316. The shorter cuts allowed them to get in faster so
that bolting could occur sooner. Further displaying the divergent testimony
between the Mr. Dolin and the Inspector, Dolin stated that there was no dust in
the area when the Order was issued. Tr. 1318. To address the Order, Dolin
stated that they “just hung a check curtain - - a couple check curtains across
the fly pads.” Tr. 1319. That had to be done, he stated, because of the way the
continuous miner was positioned. Once that was done, the air issue was
resolved. Tr. 1320. Dolin stated that it is easy for a fly pad to become torn
down on a corner by a shuttle car or other equipment or even by a person
walking on it. Tr. 1320. Consistent with the thrust of his testimony, Mr. Dolin
didn’t know anything about ventilation changes occurring 20 minutes before the
Order was issued nor about any curtain being taken down between the No. 5 and 6
entry. Tr. 1321. As for the damaged drum bits and the contention about water
sprays, Mr. Dolin agreed that those are routine maintenance items. Tr. 1322.

On
cross-examination, Mr. Dolin, agreed that Ex. R 19E reflects that coal was
being produced between 12:20 and 1:20 that day, but that the record of the
times “may not have been correct” because he insisted the mining was done. Tr.
1323.  Dolin then agreed that the continuous miner would still have been in the
entry at 1:20. Tr. 1324. Dolin repeated that the mining was completed and that
the miner was backing out of the entry, not producing coal, a status that he
viewed as idle, not active mining.  Even if miners are still in the entry, and
even if the miner is not de-energized, Mr. Dolin considered the face to be
idle, as coal was not being produced. Tr. 1325-1327. He did acknowledge that
some bits on the cutter needed to be replaced, but this was done to make the
coal cutting faster. He did not know if the worn bits increased the risk of
sparking or arcing. Tr. 1334. In terms of the different air readings between
the Inspector and his reading, Mr. Dolin didn’t know how to explain the
difference, other than perhaps that they were positioned differently when
taking the measurements. Tr. 1336. As for any notes he may have taken, Dolin
was sure that he did take notes, but could not recall the person to whom he
gave them. Tr. 1339. Brody, he stated, asks that its employees take notes when
they travel with inspectors. Tr. 1340.

The
Court concludes that the Order is affirmed in all respects. The violation was
clearly S&S and the proposed penalty of $70,000.00 is appropriate when
measured by application of the statutory criteria and it is so imposed. The
Court’s determinations necessarily involved credibility determinations which
are reflected in the Court’s findings and penalty imposition.

Citation
No. 8146352, from Docket No. WEVA 2013-997

For
this matter, Brody admits to the fact of violation but disputes the S&S
finding. The stipulation included the inspector’s air readings, including the
manner in which it was taken and the mean air velocity. Tr. 1348-1349. So too,
the degree of negligence (low), and the number of persons affected (2), were
part of Brody’s stipulation, leaving only the S&S issue. Tr. 1350.

MSHA
Inspector James Jackson testified about this matter. The citation for which the
S&S issue is involved is found in Gov. Ex. 38A. The condition or practice
section of this 104(a) citation states that “[t]he operator is not following
the approved methane dust control portion of the ventilation plan on the 011-0
MMU on the number 5 section. The Fletcher roof bolter was bolting in the number
2 entry without the required 45 MEAV air. [“MEAV” stands for mean entry air velocity.
Tr. 1354, 1356] The number 2 entry was found to have only 35.6 MEAV air while
the bolt machine was in operation. Standard 75.370(a)(1) was cited 57 times in
two years at mine 4609086 (57 times to the operator, 0 to a contractor).”

The
Inspector walked into the number 2 entry and noted that the air didn’t feel
right. He took a reading and found that the air was low. MEAV refers to the
velocity on the wide side of the curtain. Tr. 1354. Brody’s methane dust
control plan requires an MEAV of 45. When asked if he still believed that the
violation was serious, given that the reading he obtained was 80% of the
required amount, the Inspector affirmed that he did consider it to be serious
because the equipment is operating on that wide side. The velocity is important
because it is removing the gas and dust away from the miners and putting it
behind the curtain, all with the purpose of preventing prolonged exposure to
that gas and dust. Tr. 1359-1360. The Inspector, at the Court’s suggestion,
drew a sketch to help with the understanding of the cited condition. Gov. Ex.
38 D. Tr. 1360-1369. Brody’s Barry Browning was with the Inspector at that time
and a roof bolting crew of two men was then installing bolts there. Tr. 1372. The
Inspector’s concerns were methane and respirable dust. Thus, his concerns had
two aspects. The low air moving through the entry being insufficient to get rid
of the methane should a methane pocket be encountered. Tr. 1373. Though he
found no methane at that time, he noted that the mine is on the 5 day spot
inspection regime, reserved for the highest methane producing mines. Methane
can arise all at once or levels can slowly increase. The roof bolting machine,
in the process of performing that task, provides an ignition source. Tr. 1375.

The
Inspector considered the violation to be S&S because the required level of
45 represents the minimum safe level, as per the Mine’s plan. Tr. 1378.
Here, the level was “well below” that minimum. He did state that not every
level below the minimum would be S&S, but at least here, with a reading 20%
below the minimum, he considered it to be that. Tr. 1379. Should a methane
ignition occur, burns and possibly fractures could result. Tr. 1379.

Inspector
Jackson did state that the foreman and the roof bolt operators told him that
there was sufficient air when they started. However, he could not account for
anything that would cause the claimed reduction after they started. Tr. 1381.

Turning
to his other concern, that of dust, the Inspector stated that with the low air,
the roof bolt operators will be exposed to the dust as they perform their task.
This dust is right above where the roof bolt operators are doing their work,
though it is not constant during that work, occurring when the hole is started
and if the drill steel gets clogged. Tr. 1383. While he did not actually see
dust when he found the violation, his knowledge of dust occurring during such
work is based his experience in operating a roof bolting machine. Such dust
creates the hazard of black lung silica being inhaled. Tr. 1385. The Court
commented at the conclusion of the direct testimony that it could be viewed as
a situation where the Secretary, concerned about the S&S quality of the
alleged violation, decided to add the health S&S claim. Tr. 1388-1389. Although
there was an oblique reference in his notes that “encountering methane,
prolonged exposure to dust with low visibility” (Tr. 1388), the Inspector did
not mark it as a health violation, marking only “safety” for the citation.  

Upon
cross-examination, it was noted that Brody employees asserted that they had
6,195 CFM at the start of the bolting and if that were accurate, the condition
found by the Inspector would have existed for less than 30 minutes. Tr.
1389-1390. The Inspector’s notes themselves reflect “[t]his condition just
happened” and the Inspector stated that was why he marked the matter as low
negligence. Tr. 1390. A factor beyond simply the low reading in the Inspector’s
decision to mark the violation as S&S was that the miners were not done
with the face; they were continuing to advance. As they continue to advance,
more air will be lost as they cut further. Tr. 1396. However, the Inspector
admitted that he did not know how much work remained for them to finish bolting
that entry. Tr. 1397.

On
re-direct, elaborating on his S&S determination, the Inspector reaffirmed
that the gassy nature of the mine was a factor. Tr. 1399. Also, roof bolters
can encounter pockets of methane and an explosive level could occur. Tr. 1400. The
Inspector did acknowledge to the Court that he was not suspicious of the operator’s
claim that the air reading was fine thirty minutes earlier. Tr. 1401.  

At
the conclusion of the testimony, the Court expressed reservations about whether
this violation was S&S. Upon further review, it adheres to that view. In
the Court’s estimation, the third Mathies element was not established. The
Court concludes that safety, not health concerns, were the basis for this
citation. Given the short duration both of the condition and the time it would
continue, the third element was not established. The proposed penalty was
$1,657.00 and upon consideration of the statutory criteria and the absence of
the S&S element, the Court imposes a civil penalty of $1,000.00.

Citation
No. 7167400, from Docket No. WEVA 2013-1055

As with the
citation just addressed, Brody challenges only the S&S finding associated
with this. Tr. 1409-1410.  For this admitted violation the condition or
practice section states that “[t]he operator is not following the approved
ventilation plan on the number 3 section (006-0 MMU). The air was found to be
reversed in the number 1 and 2 return entries. The air was moving Inby (sic)
into the gob area. Standard 75.370(a)(1) was cited 57 times in two years at
mine 4609086 (57 to the operator, 0 to a contractor).” Gov. Ex. 39A. The 104(a)
citation was issued by Inspector James Jackson to Kevin Webb, Brody foreman.

The
Inspector stated that he was at the mine on an E02 spot inspection and had
started his imminent danger run when he discovered that the air was reversed in
the return. Tr. 1411. Gov. Ex. 39 B, is a drawing depicting the air reversal
found by the Inspector. Tr. 1413-1424.

The
Inspector marked the exhibit to reflect the violation, again which Brody does
not dispute, where he took his readings, and the incorrect air flow location. The
Court then asked the Inspector to explain the significance of the incorrect
flow. He stated that “[t]he air flowing in the wrong direction is putting all
the methane from the return back over the top of the miners and back over the
top of the equipment while it’s running, while they’re pillaring.” Tr. 1426. Elaborating,
he stated that “[t]he return air would be coming onto the section with methane
[and that] was my concern, bringing the methane over the top of the miners and
the equipment.” Tr. 1428. Inspector Jackson confirmed that there was an active
continuous miner up on the pillar line at the time he was present, that is to
say, it was taking out pillars and producing coal. Tr. 1428. Methane was the
hazard about which the Inspector was concerned. Tr. 1429. With his handheld
methane detector, he had a reading of .05 percent methane. He also took bottle
samples at that time. Lab results from those samples showed .11 percent
methane. Tr. 1430. Gov. Ex. 39 D. The Inspector had no concern with the return
air going out through the gob, nor with any methane ignition back at the gob. Tr.
1431. However, a methane ignition could potentially affect any miners working
on the section. Tr. 1432.

Upon
cross-examination, the Inspector acknowledged that his notes reflected that
“[t]his condition could expose eight miners to hazards of the return air course
reversing back to the gob area” and that “[i]t is reasonably likely that this
condition would cause an accident if it were allowed to exist” and that “.05
percent [i.e. one half of .1 percent, per Tr. 1452.] CH4 was detected in the
return at citation time” and that “[t]his condition would cause a permanently
disabling injury if an accident were to occur. This would be from the return
reversing and leading [ ] up the gob area with methane and having an ignition.”
Tr. 1436-1437. It was then noted that the Inspector’s notes make no mention of
air leaving the return entries and migrating over to the section. Tr. 1437. Instead,
his notes reflect only a concern of air going backward in the return entry and
then to the gob. Tr. 1439. Although the Inspector conceded that, by its nature,
there is no equipment in the gob, he still stated that there can be ignition
sources there. This can occur when a roof collapses and roof bolts can spark
when they break off during such an event. Tr. 1440. The Inspector agreed that
he could not dispute testimony that air will go into the gob in this location and
exit through the return air shaft at the old Jupiter mine. Tr. 1441. Again, the
Inspector conceded that his notes only refer to air exiting into the gob. Tr.
1442. In Gov. Ex. 39 B, the shaded area represents the gob. (The words
“positive pressure” appear over that shaded area; the area above that, with the
L’s represents the bleeder system itself.) The Inspector agreed that, at least
based on his notes, there is no mention of air leaving the returns and
migrating over to where miners were working. Tr. 1450. He never checked to
determine if the air was flowing over towards the miner but with the air
reversed it will make its way towards the strongest pull. Tr. 1451. The
Inspector then agreed that the area where he found the air reversed is examined
every four hours. Tr. 1453. However, it was the Inspector’s contention that in
order for the reversed air to get into the gob, it will travel through the
working section. Tr. 1456, 1463.

When
questioned by the Court and relying upon R’s Ex. 21 C, and assuming that the
preshift exam reflected there is accurate, and its indication that the
condition cited by the Inspector did not then exist, the Inspector agreed that
the reversed air existed for 3 ½ hours at most. Tr. 1459.

Though
prolonged in the examinations, the essence of the violation was that being
return air, which by definition is air that has been used and therefore is no
longer fresh air, such air is supposed to go away from the miners, but with the
reversal he found, and which reversal the operator acknowledged was present,
the bad air goes back to the miners. Tr. 1466. Upon questioning by the Court,
the Inspector agreed that the discrete hazard was used air with methane going
back over the miners working at the face and then onto the gob. Tr. 1470-1471. The
Court then inquired what the reasonable likelihood was. Inspector Jackson
responded that, but for his finding the reverse air problem, “that condition
would continue to exist and continue to allow methane to come up - - up those
entries and over on the miners. [He could not] say that [the methane is] always
going to be .05 or .11 percent methane. It may increase; it may decrease [but
he has] got to look at the worst. And to me, it was reasonably likely at this
mine, since they are on methane spot for liberating a lot of methane, that the
methane is going to continue to accumulate in that return and come up over top
of the[] miners. And the [continuous] miner itself is an ignition source. When
they’re cutting the rock, you know, cutting the sandstone, th bits cause sparks
and that we have had ignitions from [continuous] miners recently.” Tr.
1471-1472. In further redirect, the Inspector restated that the discrete safety
hazard was the air reversal bringing methane across the section and back into
the gob. Tr. 1474.

In
its defense, Brody called Kevin Webb to the stand again. As noted, he was with
Inspector Jackson at the time this citation was issued. Mr. Webb stated that
there was no equipment in the gob, nor ignition sources, nor power sources. Air
which enters the gob goes into a bleeder system and then exits to the outside. Tr.
1478. Webb agreed that Exhibit 39 B basically shows the way air would be moving
in the No. 3 section at the time of the citation. Regarding the central
controversy, Mr. Webb stated “not to [his] knowledge” would any return air be
migrating over to the section on that day. Tr. 1483. He asserted that it was
not possible for the reversed air in the 1 and 2 entries to migrate over to the
working sections. Tr. 1484. He based this view upon the 1 and 2 entries being
separated from the pillar section by permanent stoppings. Because of this, he
maintained that the air, however it was flowing, would either go out one return
shaft or the other return, which was the main return. Tr. 1485. He also stated
that those entries would be examined ever four hours. With that statement, Webb
was then directed to the on-shift records for that day, with the implication
that an exam would have occurred shortly thereafter, and that the reverse air
problem would have been noted and corrected. Tr. 1486. Speaking to the S&S
issue, Mr. Webb did not feel that the reverse air was reasonably likely to
result in a reasonably serious injury because it was return air which was
separated and would exit, as he stated earlier, through one of the two returns.
Tr. 1488.

On
cross-examination, Webb did not agree with the assertion that that were genuine
ignition sources in the gob. Tr. 1489. Subsequent cross-examination did not
shed light on the S&S issue. Tr. 1490-1503. As Mr. Webb characterized the
admitted violation as a “paper” violation, the Court inquired about the basis
for that opinion.  Webb agreed that, because of the presence of the permanent
stoppings, the violation was technical only, as the air was still return air
and would exit as he previously explained. Tr. 1507-1508. Thus, he asserted
that, “it would be impossible for the air to go back toward the section because
of the intake air pressure.” Tr. 1508.

At
the conclusion of the testimony for this citation, the Court noted that if it
were to find Mr. Webb’s testimony credible it would be difficult to find that
the violation was S&S. Tr. 1517. Having reviewed the record and the
contentions of the parties, the Court does find Mr. Webb to have been a
credible and persuasive witness for this citation. The admitted violation was
not S&S, as the second, third and fourth elements were not established per
the burden of proof on the Secretary. Given the Respondent’s credible
testimony, and upon application of the statutory criteria, a civil penalty of
$2,000.00 is imposed.

Citation
No. 8155960, from Docket No. WEVA 2014-620.

Inspector Jack
Hatfield testified for the Secretary. That Inspector issued the section 104(a)
citation on May 29, 2013 to Brody foreman Virgil Hatfield.  The condition or
practice section of the citation stated: “The Approved Ventilation Plan is not
being followed on the 005 MMU. When measured with a calibrated anemometer, the
blades of the anemometer would only barely turn behind the end of the line
curtain in the #7 entry where the scoop is found. Four tenths of one percent
methane is found in the working place where the scoop has cleaned one rib. This
condition would contribute to an ignition of methane while operating the scoop
in the working place. This mine is on a 103(i) five day spot inspection for
excessive methane liberation. Standard 75.370(a)(1) was cited 63 times in two
years at mine 4609086 (63 to the operator, 0 to a contractor).” Gov. Ex. 48 A.

Inspector
Hatfield stated that he was on the 005 MMU that day, traveling up into the  No.
7 entry up to the face where he found 4/10ths of a percent methane. Tr. 1526. That
reading was taken within 12 inches of the face. The area was roof bolted to the
face and a scoop was present, preparing to scoop the right rib, as it had just
scooped the left rib. Virgil Hatfield got the same methane reading on his own
device. Tr. 1529. The Inspector then took an air reading of the air flow behind
the end of the line curtain, and found that the anemometer blades would just
barely turn. Tr. 1530 and the Inspector’s sketch of the scene he encountered. Gov.
Ex. 48 D. Virgil Hatfield then began yelling to the scoopman about the
ventilation issue. He did not challenge the accuracy of the Inspector’s attempt
to measure the air flow, or more accurately, the lack of air flow. Tr. 1531. The
minimum required air is 3,000 cfm. Gov. Ex. 48 B and Tr. 1532. As for the cause
of the air shortage, the Inspector learned that the curtain was pinched against
the rib, blocking air. In tacking up the curtain so that the scoop can clean,
one must do that in a manner so that air will still flow. This is done by
creating a tunnel in the curtain for the air to travel. In this instance the
tunnel was incorrectly done, causing it to be pinched and blocking the air. Tr.
1542.

The
Inspector believed that with the pinched curtain, and the 4/10ths of 1 percent
methane present, this indicated that methane was starting to accumulate. Yet,
the scoop still had to clean the right rib and he was concerned about that
machine’s continued operation under those conditions. Tr. 1542. Thus, the scoop
itself, with its battery terminals, the wiring, a light on a scoop, and
batteries themselves, all presented an ignition source, according to the
Inspector. However, he did not find any safety issues with the scoop then being
used. Tr. 1543. Yet, the Inspector still believed that scoops, by their nature
and through their normal operation duties, present possible problems and by
those, ignition sources. Tr. 1544-1545. Methane was the hazard that worried the
Inspector. Tr. 1545. While the 4/10ths of 1 percent was not an explosive level,
he was concerned that the methane level would rise, given the lack of
ventilation. Tr. 1549.  Inspector Hatfield stated that he couldn’t know how
long it would take for an explosive level of methane to develop. Tr. 1550. He
then stated that it could develop in a short while from as little as 20
minutes. The Inspector then estimated that the scoop would need to remain in
that area for another 30 minutes to clean the right rib and then to apply rock
dust. Tr. 1552. He stated that it was reasonably likely that sufficient methane
could accumulate during that period of time to cause an electrical arc, which,
at a minimum could result in burns. He added that an explosion was reasonably
likely by the time the scoop finished cleaning the area. Tr. 1552. That the
area had not been rock dusted and the accumulation of materials on the rib’s
right side, also contributed to that hazard’s occurrence. The Inspector marked
the negligence as moderate because he had discussions with mine employees,
including foreman Virgil Hatfield, about how to ventilate and because the mine
operator was in the best position to make sure the ventilation was proper. Tr.
1554. This involved making sure that the ventilation “tunnel” was properly
installed to ventilate the face. Tr. 1555. In response to a question from the
Court, the Inspector ultimately agreed that once the scoop had finished the
cleanup and the area had been rock dusted, the risk was over. This entailed a
period of about 30 minutes. Tr. 1558-1559.

During
cross-examination, the inspector agreed that after the scoop finished its task,
a new air reading would be required before cutting resumed. Tr. 1560-1561. The
abatement required that the curtain be pulled away from the rib and re-tacked
properly to it. No defects were found on the scoop that day, though the
Inspector stated that he did not inspect it either. Tr. 1564. The face was
considered to be idle at the time of the citation, with the consequence that
3,000 cfm was required at that time. Thus, the Inspector could not state that
the air remained insufficient once the continuous miner resumed its work. Tr.
1565. The Inspector also agreed that the continuous miner in the process of
cutting coal sprays water and that accounted for the Inspector’s acknowledgment
that the coal along the rib was damp. Tr. 1567. As a consequence, at least
sometimes the coal spillage from the shuttle car will also be damp from that
earlier spraying. Tr. 1568.

The
Court concluded that this matter came down to an analysis of S&S in the
context of 30 minutes of time, and after hearing the testimony from the
government, announced that it found that it was not shown to be S&S. Tr.
1571-1572. Given the short duration of the window of concern, the dampness of
the coal, the minimal amount of methane found, the absence of any problem with
the scoop, the S&S characteristic was not established by the government. Upon
consideration of the evidence, a civil penalty of $3,000.00 is imposed.

Citation
8155954 from Docket No. WEVA 2014-620

Citation
No. 8155954, a section 104(a) citation, was issued on May 21, 2013, by
Inspector Jack Hatfield and served to Brody foreman Kevin Webb. The condition
or practice section of that citation states: “The Approved Ventilation Plan is
not being followed on the 005 MMU. When measured with a calibrated anemometer,
a mean air velocity [i.e. mean entry air velocity or MEAV. Tr. 1579] of 40 is
found in the #5 right break where the roof bolt crew is observed installing
roof bolts. This condition contributes to the exposure of excessive dust,
including respirable dust while drilling the mine roof and coal ribs. The
Approved Plan requires minimum mean air velocity of 45 to be maintained at the
end of the line curtain. This active MMU is on a reduced standard of 1.2 mgm3
due to excessive quartz. Standard 75.370(a)(1) [the standard cited for this
citation] was cited 62 times in two years at mine 4609086 (62 to the operator,
0 to a contractor).” Gov. Ex. 47A. In preparation for his testimony, the
Inspector drew a sketch of the condition he cited in order to aid in the
understanding of the violation. Gov. Ex. 47D.  Brody admitted to the violation,
challenging only the S&S designation. Tr. 1576-1577.

A
factor in the Inspector’s S&S determination rested upon the mine being on a
reduced dust standard due to its excessive quartz. No dust sampling was done
that day but the key finding for the Inspector was the lack of the required
mean air velocity. The mine’s ventilation plan requires a MEAV of 45 and that
is the minimum requirement. Tr.1579-1580. The Inspector stated that without the
minimum required air, miners are exposed to dust from bolting and he stated
that there is also a hazard of methane accumulation. Tr. 1583. For the methane
issue, the Inspector stated that the mine bolts ribs and that process creates
sparks as they drill. When he arrived at the scene, there was still more
bolting required to be done, a tasks that he estimated would take another 30
minutes or so. The entire task of bolting the area would take, he estimated,
about 50 minutes to an hour. Tr. 1584. The Inspector took his air reading and
that number is not challenged by Brody. However, he also took a methane
reading, but found no methane at that time. He believed there was still a
methane hazard however because the bolting process was not finished and the
mine is on the 5 day, high methane, spot inspection regime. Tr. 1585. The air
reading below the minimum contributed to the risk of a methane ignition. This
factor was coupled with the bolter drilling process which creates an ignition
source. Tr. 1586-1587. The risk of encountering methane is chiefly during
drilling ribs than the roof. Tr. 1593.

When
asked if the fact that since the minimum air at 45 and his reading at 40 were
close, was a factor in determining the S&S characteristic, Inspector
Hatfield responded, “No.” Tr. 1586. Hatfield believed that there was a
reasonable likelihood that the violation, when considered with the hazard of
methane, would contribute to an injury. He added that severe burns would be the
expected injury to result.  He did not see any dust at the time he noted the
violation, though normally dust is created during the roof bolting process. Tr.
1588-1589. However, the drill has a vacuum component to capture dust, though it
does not capture all dust. Tr. 1589-1590.   

Upon
cross-examination, the Inspector went over the procedure he employed in taking
his air reading and also agreed that he found no methane at that time. Tr.
1595-1597. The CFM behind the end of the line curtain was 4,473, which amount
exceeded the plan minimum. Tr. 1597. Hatfield did not know, as represented by
Brody’s Counsel, whether his velocity reading of 40 translated into a 12
percent insufficiency. Tr. 1598. He disagreed with the suggestion that, as
there was no methane found, that there was no likelihood that methane could
accumulate in the 30 minutes remaining for the bolting process to be completed.
He based this view upon one never knowing when methane will be encountered. Tr.
1600. Though he didn’t observe any dust, the Inspector noted that the bolters
had stopped their work when he arrived and he stated that there was dust on the
mine floor, though his notes did not record that. Tr. 1602. He did not believe
that the mean air was sufficient to remove any dust the drillers could
encounter. Tr. 1602. He acknowledged that he did not know if there was any
impermissible amount of dust in the air at that time. Also, he did not know
what the air level was before he arrived at the location. Tr. 1604. He did
agree that the bolting in that area would have been completed in 25 to 30
minutes. Tr. 1606. To the suggestion that a new air reading would be taken when
the bolter goes to the next entry, the Inspector stated that he did not know if
that was a requirement at the Brody mine but could not dispute it. Tr. 1607.

In
response to the Court’s inquiry, the Inspector stated that if he had found a
reading of 44 he would also have concluded that the violation was S&S. Tr.
1609. Anything below the minimum, because of the quartz, would be S&S, as
far as the Inspector was concerned. Also, as noted by the Court and
acknowledged by the Inspector, when the citation was issued, the Inspector did
not list any safety concerns. Tr. 1613. Though later contradicted in testimony
by another inspector in these proceedings, Inspector Hatfield asserted that his
computer program did not allow him to check both safety and health
concerns when filling out the citation. However, he stated that glitch had
since been corrected. Tr. 1614. The Court noted that there was no barrier to
the inspector including both safety and health concerns in the body of
the condition or practice section of the citation. Tr. 1615.

In
its defense, Brody recalled foreman Kevin Webb, the individual to whom the
citation was issued. Mr. Webb stated that before a cut is made with the miner
in place, an air reading is taken behind the line curtain and also the mean air
reading is done before a cut and before bolting. This is done by the section
foreman. Tr. 1618. Webb also stated that he did not observe any dust when the
citation was issued that day.  Air readings are taken every time a roof bolter
moves into a different entry or crosscut and this occurs before bolting starts.
Mr. Webb also identified the pertinent on shift report, which reflects no
methane was present that day. Tr. 1621.

On
cross-examination, Mr. Webb acknowledged that he doesn’t personally know that
these air readings are always done and that he presumes that the foreman will
be doing those readings as it is part of that person’s job.[41]
 He also stated that the low MEAV was caused by a line curtain which needed to
be tightened up. Tr. 1623. He acknowledged that it is possible that the line
curtain became loose right after the on-shift exam occurred. Therefore it was
at least possible that the low air existed the entire time the roof bolters
were in that area. Webb also agreed that the roof bolting machine generates
dust and that if there is inadequate ventilation in the area, that would
contribute to the hazard of dust exposure and that the same inadequacy can
contribute to a methane accumulation. Tr. 1624. Mr. Webb also agreed that a
roof bolter could encounter a pocket of methane as he is working. However, he
also pointed out that, in his view, there was still sufficient air behind the
line curtain to keep the methane out. Tr. 1625. Upon further questioning, Mr.
Webb did agree that any amount below the required air contributes to the
hazard of a methane accumulation. Tr. 1626. He also agreed that the normal roof
bolting process creates ignition sources, and sparking, arcing, friction and
heat. Tr. 1629.

This
violation was originally assessed at a proposed $8,893.00. The Court notes that
the Inspector did agree that the bolting in that area would have been completed
in 25 to 30 minutes. Also, as noted by the Court and acknowledged by the
Inspector, when the citation was issued, the Inspector did not list any safety
concerns. On the basis of the evidence, only the health concern was genuinely
in issue. Given that the drill has a vacuum component to capture dust, and even
though it does not capture all dust, when coupled with the unrefuted
insufficiency of  12 percent and the short period of possible exposure, the
Court concludes that the S&S element was not established in that the third
and fourth Mathies’ elements were not established according to
the burden of proof required of the Secretary. Given this finding, the Court
has determined that a $4,000.00 is appropriate upon consideration of the
statutory criteria and it so imposed.

Citation
9000282 from Docket No. WEVA 2014-620

This Citation,
per Gov. Ex. 49A, was settled. The Secretary has dropped the S&S
designation and modified the gravity from reasonably likely to occur to
unlikely.

Citation
9000311 from Docket No. WEVA 2014-620

This
Citation, per Gov. Ex. 50A, was settled. Brody has agreed to accept the
citation, as issued, including the S&S designation and to pay the proposed
penalty assessment.

Citation
9000312 from Docket No. WEVA 2014-620

This
Citation, per Gov. Ex. 51A, was settled. Brody has agreed to accept the
citation, as issued, including the S&S designation and to pay the proposed
penalty assessment.

Citation
9002292 from Docket No. WEVA 2014-702

This Citation,
per Gov. Ex. 52A, was settled. The Secretary has dropped the S&S
designation and modified the gravity from reasonably likely to occur to
unlikely.

Citation
8137713 from Docket No. WEVA 2013-997

The
Secretary called Inspector Timothy Crawford for this section 104(a) citation. Issued
October 9, 2012, to Brody foreman Willard Bourne, the condition or practice
section of the citation stated: “The Approved Methane and Dust Control Plan is
not being complied with on the 005-0 MMU at this mine. When checked with an
approved calibrated anemometer, the quantity of air at the end of the line
curtain in the #7 Entry where the roof bolter is operating is found to be 561
cfm. This condition exposes the roof bolter operator’s (sic) to hazards
associated with excessive dust which can result in permanently disabling
illnesses and crushing injuries due to limited visibility and can also result
in a methane build-up in the working face, etc. This mine is on a 5 day 103(i)
spot for methane liberation. Standard 75.370(a)(1) was cited 57 times in two
years at mine 4609086 (57 to the operator, 0 to a contractor).” Gov. Ex. 40A.

Both
the safety and health boxes were marked by Inspector Crawford on this citation.
Upon arriving at the 005MMU, the Inspector heard the roof bolter running. As he
did so, he noticed air in the intersection blowing and the fly pads were
blowing. Tr. 1641. Those fly pads, designed to direct air to the working face,
were blowing straight up, and this allowed air to bypass the No. 7 face. To
help explain the condition he encountered, the Inspector drew a sketch. Gov.
Ex. 40E. The Inspector took his air reading behind the curtain. The end of the
line curtain was marked on the sketch. Tr. 1647.

The Inspector explained why he wrote the
citation: “After I noticed that the air was moving through the fly pads, I
decided to take an air reading. The -- both bolter operators were around their
drill pots. They weren't actively drilling holes or in the process of bolting
while I was there. So I went up and took the air reading behind the curtain.”
Tr. 1648. He added that the air was bypassing the No. 7 entry. The fly pads are
to direct the air towards the working face. As a result, the air was directing
the fly pads, whereas the purpose is for the flypads to direct the air. Tr.
1650. While the roof bolters were not bolting at that moment, the machine was
running and its pump motor was running. As he recalled, one rib bolt had been
installed and this location was marked on Exhibit 40 E. While the Inspector’s
citation is listed as served to Willard Bourne, he did not believe that Mr.
Bourne was present when he took his air reading nor when he issued the
citation. He thought that Mr. Bourne arrived after that. The Inspector then
went into some detail about his air measurement, and how and where he took it. Tr.
1654-1657. Upon doing so, he had a reading of 34 feet per minute. This was used
in making his calculation which yielded a quantity of 561 cfm (cubic feet per
minute). Tr. 1657. In contrast, the ventilation plan requires 4,000 cfm during
roof bolting operations. Gov. Ex. 40B, Tr. 1658.

Upon his reading, he told the roof
bolters of the results and that he was issuing a citation. It was about that
time that foreman Bourne arrived and the Inspector repeated the same
information. The foreman’s response was to challenge the citation because he
contended that the bolting had not started. Tr. 1662. At that point the
Inspector showed the foreman the clean bolt the crew had just installed. Once
Bourne saw that he dropped his challenge. Tr. 1662.

In terms of his concerns over hazards
associated with this violation, the Inspector stated he was concerned about
methane ignitions. It is common, he stated, for sparks to occur in the bolting
process. He also was concerned about respiratory problems and reduced
visibility. While he found no methane at that time, it can arise at any moment.
Also, right after a cut is mined, methane will often leak from the ribs and
floor and in a situation as this, involving 30 to 40 feet with no ventilation,
methane could build up. Tr. 1664. He estimated the time for the miners to bolt
the area to be from 45 minutes to an hour and fifteen. He believed that, all
things considered, it was reasonably likely for an explosive accumulation of
methane to have developed. In part, this view was based on the observation that
one never knows when one will hit methane. Tr. 1665. The Inspector also
identified multiple ignition sources on the roof bolter itself, though he did
not examine the bolter that day. Asked how the low air contributed to the
hazard of methane accumulation, the Inspector summed up his concern: “The 561
CFM was, in my eyes, substantially lower than 4,000. If you don't have the air
that's required to sweep out the methane -- I mean, that's the routine of the
system. The ventilation system is to sweep the methane and dust from the
working places.” Tr. 1666-1667.

The Inspector also spoke to the
likelihood of the contribution to an injury. “Q. Now, the hazard of a methane
accumulation, is it reasonably likely that would contribute to an injury?

A.
 Yes.  Q.  How would it contribute to an injury and what kind of injuries? A.  If
you have an ignition, best case scenario, I mean, is -- I hate to refer to it
as a best case, but you would only get burns sustained in the miner or is
likely to -- you'd only get burns. If it ignited the coal dust, it could be quite
a bit more catastrophic.” Tr. 1667.   

Though he didn’t observe dust at the
time of the violation, normally roof bolters do encounter dust when installing
bolts. As the roof bolting is done at the top, there will be more silica and
“stuff” from the rock. With the dust not being swept away as required by the
plan, the dust will linger longer around the bolt operators. He did not believe
that 561 cfm was sufficient to sweep away the dust. Tr. 1669. Additionally,
normally dust is generated during bolting, and inadequate ventilation would
make matters worse. The scoop operator may also have reduced visibility in such
circumstances of substantially reduced air levels and possibly hit a bolter. With
the inadequate air, he also had health concerns, as the bolters would have
prolonged exposure to the dust. Such exposure subjects miners to the risk of
developing pneumoconiosis, silicosis, or as it is commonly called, black lung. The
Inspector’s marking the negligence as moderate was primarily based on the
standard having been cited 57 times in two years. Another factor was the
obviousness of the violation. Also the fly pads issue was obvious. The foreman
should have noticed the issue. Tr. 1673. The condition was abated to deal with
the problem of the air not being directed to the working face.

The cross-examination covered the usual
bill of fare with matters such as that there was no methane detected by the
Inspector at the time he found the violation, that his imminent danger run
found no issues; that no continuous miners were running at the time of the
violation; and that the inspector was not running dust sampling that day. Tr. 1675-1685.

In response to the Court’s question whether
the Inspector considered the health concern or the safety concern to be
S&S, he responded that it was both, with the stronger of the two being the
safety hazard. Tr. 1685.

In its defense, Brody called Willard
Baxter Bourne, the foreman who was served the citation in issue. Mr. Bourne is
presently employed by Brody, working as a fire boss. His mining work history is
extensive, covering some 44 years. At the time of this citation’s issuance, Mr.
Bourne was a section foreman. Though his name appears on the citation, he
stated that he was not the person served with the citation. He stated that he
did take an air reading before the continuous miner went into the No. 7 entry
and that there was sufficient air at that time. Tr. 1693. He then went on to
other duties but upon returning to the right side, he was told by the miner
operator that he had damaged a rib bolt. Tr. 1694-1695. He then ordered repairs
but again took an air reading and found, again, sufficient air. Tr. 1695. Mr.
Bourne contended that “everything looked good” and that the air he measured was
okay as well. Tr. 1697.  However the Inspector stated that the air was
insufficient but Bourne’s contention was that the workers were replacing the
damaged rib bolt, the implication being that the section was down at that time.
Tr. 1698. Bourne also stated that he saw no dust in the area and that there was
no hazardous methane level present either. He further contended that the
inspector wouldn’t let them lower the curtain, at least that is what his
operators told him, and that to abate the condition all they had to do was
lower that curtain. Tr. 1704.

Upon cross-examination, Mr. Bourne
stated that he took notes of the incident and turned them in to Mr. Morrison
with the mine’s safety department. The notes were to be returned to Bourne, but
they never were. Tr. 1706-1707. Even without his notes, Mr. Bourne seemed to be
able to recall the events with great detail, including air measurements. Tr.
1708-1711. He maintained that he ordered the rib bolt to be replaced and then,
once that was completed, they would re-establish the air. Tr. 1714. To make the
repair, the curtain had to be rolled up. Tr. 1714. In fact, Bourne stated that
he helped them roll up the curtain. Tr. 1715.

However, Mr. Bourne agreed that the
ventilation plan requires 4,000 cfm of air behind the curtain when installing
the rib bolt. Tr. 1720. In response to questions from the Court, Mr. Bourne
initially acknowledged that he did not dispute that the Inspector got an air
reading of 561 cfm and that such a reading is below the required amount, but he
then stated that the reading was not in fact right. Tr. 1721-1723. There were
moments of confusion as to what the witness was contending about the matter,
though the confusion may have been on the Court’s part. Still, pursuing the
matter further, Mr. Bourne stated that the fix he ordered for the rib bolt
would not have caused any reduced air flow. Tr. 1724. In sum, Mr. Bourne stated
that he could not account for any reason to explain the reduced air flow
claimed to exist by the Inspector. Tr. 1725.

In further cross-examination by the
Secretary, Mr. Bourne acknowledged that something could have happened in the
interval of time between 6:25 and 7:45 to account for the diminished air
reading. Tr. 1727. Thus, to restate Mr. Bourne’s position, the curtain had to
be raised up to deal with the rib bolt problem and then to abate the citation,
the curtain needed to be rolled back down. Tr. 1727. Bourne also contended that
there was no work site established where the Inspector took his reading and he
denied that there was any issue with the fly pads. Tr. 1731-1732. He did
methane could suddenly arise during a roof bolt installation but that it could
reach an explosive level only if there is no ventilation. He also agreed that
roof bolters generate ignition sources when they are installing bolts and that
having only 561 cfm would contribute to the hazard of a methane accumulation
and that the injuries of an ignition would include burns. R. 1732-1734. He did
not feel that dust could be an issue because the roof bolting machine has a
vacuum to draw in such dust. Mr. Bourne summed up his perspective of the
citation by stating if the inspectors had not shown up, the roof bolters still
would have dropped the curtain after the repair, checked the methane and taken
an air reading and then re-established themselves 15 feet inby to start a new
work site. It is fair to state that his remarks were supported with his
additional testimony concerning his view.[42]
Tr. 1735-1736. Sensing perhaps that Mr. Bourne’s testimony had been damaging to
the Secretary’s contentions,[43]
Counsel for the Secretary then raised objections about not being provided with
Mr. Bourne’s notes, which the witness had referenced as having been taken near
the time of the citation but that he no longer knew of their whereabouts,
though he turned them in to Brody. Suffice it to say that the Court addressed
this concern but that the entire issue of notes and the parties’ obligations to
deliver them to each other, was disputed. Thus, the late-raised issue did
not lead to the conclusion that Brody had behaved improperly. Tr.
1739-1741. The Court directed Brody to look for any and all notes related to
these citations and, subsequent to the hearing it did so. However, the Court
was not about to have the delivered notes turn into a new subset of disputes
over interpretations about remarks in those notes.[44]

The Court has concluded that, based on
all of the testimony, the Secretary did not establish this alleged violation, Citation
8137713, and therefore it is DISMISSED.

Citation
7165682 from Docket No. WEVA 2014-620

For
this matter, Brody admits to the fact of violation and all other aspects except
for the S&S issue. Tr. 1749. This section 104(a) citation, No. 7165682,
issued July 24, 2013 by MSHA Inspector Timothy Crawford states, in the
condition or practice section that: “[t]he Approved Ventilation Plan is not
being followed on the 005-0 MMU at this mine. The Methane and Dust Control
portion of the plan states that a minimum of 8,500 CFM will be maintained at
the end of the line curtain and a minimum of 85 MEAV will be maintained during
the mining cycle. When checked with an approved calibrated anemometer, the air
quantity in the #6 Face, where the C/M is cutting/loading, is measured to be
6,840 CFM and 50 MEAV. This condition exposes miners on this section to hazards
associated with inadequate ventilation such as methane ignitions, silicosis,
CWP, etc. This mine is on a 5 day 103(i) Spot Inspection for methane
liberation. Standard 75.370(a)(1) was cited 68 times in two years at mine
4609086 (68 to the operator, 0 to a contractor).” Gov. Ex. 41A.

In
testimony about the citation he issued, Inspector Crawford stated that when in
the cited area he notice dust suspended in the air, rolling back from the miner
in the No. 6 entry and this prompted him to determine if there was sufficient
air to the face. Tr. 1751. For this conceded violation, the Inspector drew a
sketch to illustrate the conditions he found. Gov. Ex. 41 D. The Inspector
stated that the hazards that concerned him for this violation were the methane
ignitions, silicosis, health issues, and impaired visibility from the dust,
risking miners being struck by mobile equipment. Tr. 1753-1754. The citation
marked both health and safety concerns for the violation. While Crawford did
not record any methane, the miner loading in the No. 3 face detected .3 percent
methane. However, the violation was found in the No. 6 face. Tr. 1754. The
miner had just started his cut and the time to finish it would be about an hour
and forty-five minutes. Tr. 1755. Contributing to the violation, the Inspector
stated that the miner, when cutting or loading, will throw sparks. Also,
typically, methane will be liberated from the ribs and floors during the mining
cut. If a methane ignition were to occur, burns to the miner man and the
shuttle car operator would be likely. Tr. 1757. The Inspector also spoke to the
dust hazard he perceived. He analogized the dust level to driving into fog. The
ventilation plan’s design is to sweep away methane and dust generated during
the mining cycle. One will not typically see dust he observed when the
ventilation is sufficient. The low visibility created by the dust posed the
risk of individuals being struck by mobile equipment. Tr. 1759-1763. While the
fog was not so thick as to block all visibility, the Inspector did state that
it was sufficient to hinder it. Tr. 1763. With 8,500 cfm being the required
minimum air, the Inspector asserted that the 6,840 he found was low enough to
create the visibility reduction he observed. Tr. 1763. Injuries from such a
machine to person impact would include severe crushing and amputation. The dust
also presented a health hazard from silica by increased exposure. Further, the
dust compounds the methane hazard with the analogy of the methane being the
wick and the dust serving as the dynamite. Tr. 1765. He added that while the
dust doesn’t add to the likelihood of a methane ignition, it would contribute
to the severity of one, should that occur. Tr. 1765.

During
cross-examination the Inspector stated that the dust he observed was likely the
product of the shale rock that had fallen from the top that was being cut up at
that time. In the Court’s estimation, the cross-examination did little to
dispel the Inspector’s testimony concerning the basis for his S&S finding. Tr.
1767-1780.

In
its defense, Brody called Virgil Hatfield, the foreman who was issued the
citation. Mr. Hatfield acknowledged that the Inspector had an air reading of
6840 but that his own reading was 8768. Tr. 1787. However, Mr. Hatfield could
not recall if his measurement was taken after abatement measures had been
done. Tr. 1789. In attempting to rehabilitate that response, Mr. Hatfield
stated that very small changes, such as the way one holds one’s wrist, can
impact the air readings. Tr. 1790-1791.

During
cross-examination, Mr. Hatfield acknowledge that his own notes reflect a mean air
reading of 64 but that 85 is the required amount, confirming that there was a
violation, as Brody admitted. Tr. 1799-1800. To abate the condition, Hatfield
stated that they “fixed the line curtain.” Tr. 1803. He also agreed that they
stopped the continuous miner from operating because the air was low and he
didn’t want them operating in the hazard of low air. Tr. 1804-1805. He also
acknowledged that no one can know when methane issues can arise and that
continuous miners create sparks sometimes as they work. Hatfield also stated
that the miner’s scrubber hose will suck up the methane, along with dust, if a
miner is run long enough.  Tr. 1807-1808. However, Mr. Hatfield did not agree
with the required air CFM. He felt that 6,840 was sufficient, noting that used
to be the required level. The change was prompted because Brody “got a
little bit on the dust pumps. When we [were] out of compliance on our dust
pumps.” Tr. 1810. He did not agree that the admittedly low air contributed to
the hazards of dust and methane. Tr. 1812.

Although
the Court concludes that the safety basis for the S&S claim was not
established, the health basis was established, based upon the Court’s
determination that the Inspector’s testimony was more persuasive and credible. Accordingly,
the Court concludes that that S&S element was proven for each of the two
disputed elements. The proposed assessment for this was $8,893.00 and the Court
concludes that, upon application of the statutory criteria, that amount remains
appropriate and is so imposed.

Citation
7168841 from Docket No. WEVA 2013-1055.

Citation
7168841,
a section 104(a) citation, issued November 26, 2012 by Inspector Joshua A.
McNeely to Brody’s Aubrey Hartman, foreman, states: “The approved ventilation
plan is not being complied with. The continuous miners being operated in the #5
entry of the Beaver Mains section does not have the required amount of
ventilation. The miner is loading the shuttle car and only 4,620 cfm is
provided. The plan requires 8,500 cfm . Dust is visible in the entry around
both operators. This condition exposes miners to hazards related to respirable
dust and other hazards related to dust. This is a 5 day 103i spot inspection
mine due to CH4 liberation. Standard 75.370(a)(1) was cited 57 times in two
years at mine 4609086 (57 to the operator, O to a contractor).” The Inspector
marked “safety” in the box next to violation, box 9. Gov. Ex. 42A. For this
violation, Brody stipulated to the fact of violation and the moderate
negligence designation, and all other aspects, including items such as the air
readings, leaving only the S&S designation in dispute. Tr. 1814-1817.

Inspector
McNeely stated that when he came upon the scene in the entry, the continuous
miner was loading the shuttle car and “there was visible dust around it, kind
of stagnant looking air . . .” Tr. 1819. The miner was at that time at the end
of its cut, with cut taking approximately 30 minutes to an hour. He observed
dust in the area where the men were working and it was “all around them.” Tr.
1820. The dust was sufficient to affect visibility. Tr. 1820. He stated that
multiple hazards are associated with this. The less air one has, the more dust
will be present and there is a greater chance for methane buildup. Equipment
operators have a greater risk of hitting personnel under such conditions too. He
did take a methane reading at that time and it did not detect any methane then
but the continuous miner’s display did read 0.1 percent methane. Tr. 1822. However,
he noted that this mine liberates great quantities of methane, which is the
reason it is on a five day spot inspection. At this mine a pocket of methane
can arise at any time and an explosive level can develop in seconds. Tr. 1823.  Related
to this, the continuous miner itself is an ignition source itself. The low air
and methane risk go hand in hand as the less air, the greater chance for a
methane buildup. A methane ignition can result in burns and if coal dust is
added, fatalities may occur too. Tr. 1825. The dust he observed was either dust
from mine rock or coal dust and occurs in the cutting process. Dust doesn’t
make a methane ignition more likely but it could contribute to the damage if an
ignition occurred.  The dust also creates a safety hazard of an accident
occurring between the shuttle car operator and the continuous miner operator. Tr.
1829. The Court takes note that other witnesses for MSHA testified during the
course of these hearings to the same effect about the safety hazards attendant
to dust reducing visibility. The Inspector affirmed that the level of dust he
observed was consistent with those safety concerns. As he expressed it, “It was
a pretty good bit of dust.” Tr. 1830. The related dust issues on health were
also part of previous testimony from MSHA witnesses and this Inspector’s
testimony echoed those expressions. Tr. 1833-1835. Ventilation controls were
repaired and installed and five men and two foremen were involved in that
effort. Tr. 1836.

The
cross-examination again reviewed familiar territory: that an imminent danger
run had been conducted previously; that no methane was then encountered; etc.  The
Inspector acknowledged that the cut was almost finished and that the miner
would then move to another entry. Tr. 1838. After that, the bolting crew would
move in and take an air reading to determine if there was sufficient air. The
Inspector had no indication that the miner’s scrubber was not working, however,
he added that he couldn’t say it was working properly given the amount of dust.
His concern was not over the miner’s scrubber; his focus was on the amount of
dust he encountered. Tr. 1840. The Inspector, in his notes, marked that Shanon
[Dolin] the section foreman, told him that he had an air reading of 10,000 CFM prior
to the cut. Tr. 1841, 1850. Still, while not directly challenging that
assertion, the Inspector focused instead on the fact that it took 55 minutes to
make the corrections and provide the required amount of air. Tr. 1842. The
Inspector did not assert that the dust was so thick that the miner operator or
the shuttle car operator could not be seen. Tr. 1846.

Brody
did not call any witnesses in its defense of this citation.

Upon
review of the record and arguments, the Court finds that this admitted
violation was S&S. The Court finds that the Inspector’s credible testimony
about the safety hazard attendant to the scene he encountered for this admitted
violation, established the remaining three Mathies elements. Given the
nature of this mine’s high methane liberation characteristic, an additional,
independent, basis for concluding that the violation was S&S exists on the
record evidence. On those twin safety-related bases, it is unnecessary to reach
a conclusion about a health basis for an S&S finding, though such a
finding, if it were needed to be made, would not be unreasonable.

The
proposed penalty for this was $7,578.00 and upon review of the record, the
Court concludes that upon application of the statutory criteria, that penalty
amount remains appropriate penalty and is so imposed.

Citation
7168866 from Docket No.WEVA 2014-620

Inspector Joshua
A. McNeely again testified for the Secretary regarding Citation No. 7168866,
issued January 14, 2013 and served to Brody’s Derek Morrison. The Citation
states: “The approved ventilation plan is not being complied with on the active

4 section 011-0 MMU. The roof bolter is installing primary roof supports in

the #4 entry without the minimum amount of air. Only 3,276 cfm with a MEAV of
24 is being supplied to the end of the line curtain.  This condition exposes
miners to respirable dust, and methane build up hazards. Standard 75.370(a)(1)
was cited 60 times at mine 4609086 (60 to the operator, 0 to a contractor).” Gov.
Ex. 43A.

Brody
admitted to this violation and stipulated to all related facts, including items
such as the air reading obtained by the Inspector, except for the S&S
designation. Tr. 1855-1856.

Inspector
McNeely stated that in traveling on the active No. 4 section he found that the
ventilation plan requirements weren’t met at the roof bolting machine. Tr.
1857. At that time, the roof bolter was installing roof supports. The bolter
was then at about 110 feet deep, so he was near the end of that, leaving about
20 to 40 feet remaining before moving to another section. The minimum amount of
air required is 4,000 CFM, and an MEAV of 45, but the Inspector found only
3,276 cfm with a MEAV of 24. Tr. 1859. The Inspector revisited the same safety
concerns which he expressed in the citation just discussed, next above. Essentially
that concern is that with less air comes more dust and the opportunity for
methane buildup. Reduced visibility, a safety concern, and respirable dust, a
health concern, were again the hazards identified by the Inspector. Tr. 1860. No
methane was detected but in the adjacent entry the miner displayed 0.3 percent
methane. Tr. 1860. Given this mine’s enormous liberation of methane every 24
hours, the Inspector noted that there is “always a chance for methane
liberation with any piece of equipment in any face.” Tr. 1861. The roof bolter
presents an ignition source and the Court notes that this essentially an
undisputed fact, based on the testimony during these hearings from both sides. The
expected injuries, also as previously testified to numerous times, were the
same as well. The Inspector also stated that “there was some pretty good dust
in the area.” This dust covered the area of the roof bolter and “past it a
little.” Tr. 1864. As noted before too, a methane ignition could propagate a
dust explosion, as the dust would ignite.  A safety concern related to the
dust, the scoop would come within 3 feet of the roof bolters and this again
would present the risk of crushing-type injuries. The violation was abated in
about 20 to 24 minutes, but the Inspector expressed that the repairs were
“fairly extensive” with five miners participating in the corrections. Tr. 1870.

During
cross-examination, the Inspector stated he was working under the assumption
that the miners were exposed to the low air for the entire time they were
bolting that area, a time period for which he made an approximation. Tr.
1883-1884. He agreed that when the bolting was done, the bolters would move to
the next entry and that another air reading would then be done in that next
entry. In terms of the concern that a scoop might strike a bolter operator, the
Inspector agreed that the scoop would stop about 10 feet from the bolters’
physical location at their machine. Tr. 1893. When it was suggested that as the
air was only 724 CFM below the required amount, the Inspector responded that
was an amount below the minimum. Tr. 1897. He did not agree that he would deem
1 CFM below that minimum as significant but only that 724 was.

Brody
did not present any witnesses of its own for this citation.

The
Court concludes that the violation was established as S&S, and that while
both safety and health concerns were S&S, the stronger of the two claims in
this instance was the health concern. The proposed assessment was $8,209.00 and
the Court concludes that amount remains appropriate upon application of the
statutory criteria and it is so imposed.

Citation
7168913 from Docket No. WEVA 2014-620

This section
104(a) citation, No. 7168913, which was also issued by Inspector Joshua A.
McNeely, and issued on February 13, 2013 to Brody foreman Josh Anderson,
states: “The approved ventilation plan is not being complied with. The
energized continuous miner on the active #1 section is in the #2 face without
the minimum required ventilation for the 001-0 MMU. When checked, the air
behind the line curtain measured 6,648 cfm. The plan requires at least 8,500
cfm for this miner. This is a 103i 5 day methane spot inspection mine. The
condition exposes miners to hazards related to methane build-up and dust
hazards. Standard 75.370(a)(1) was cited 61 times in two years at mine 4609086 (61
to the operator, 0 to a contractor).” Gov. Ex. 44A. The Inspector marked
“safety” in the section 9 of the citation.

The
Inspector stated that he came upon the area and observed the continuous miner
operator cutting coal. Tr. 1903. He added seeing embers, that is to say,
sparks, coming from the miner’s cutter, when rock is cut. Tr. 1904-1905. Arcs
were seen coming from the bits. Tr. 1911. Brody then stated that it was not
disputing that the Inspector found 6648 cfm behind the curtain. Tr. 1909. The
air requirement of 8,500 minimum applies when mining or loading. Tr. 1911.  

The
same concerns expressed by the Inspector for the similar violation he testified
about, obtained here and there is no need to repeat those. To abate the
violation, loose parts of the curtain had to be tightened up to the mine roof
or to the seams of curtain that were together and some holes in the curtain
were patched. This took about 40 minutes to accomplish. Tr. 1929. The
negligence was marked as moderate because the condition was obvious and foremen
were in the area and they were required to do preshift exams. Tr. 1929.

The
Court asked the Inspector to explain his reasoning regarding his testimony for
a similar violation, where he observed dust and considered the violation to be
S&S, and for this violation, where he did not observe dust, but
still marked it as S&S. The Inspector stated that it was his view that, had
he not found the violation, the mining would have continued just as it was,
with no tending to the diminished air and so the air would not have gotten
better, but for his citation. Tr. 1933. As he saw it, with continued normal
mining operations, the air would have worsened, but for his intervention,
issuing the citation. Tr. 1934. The Court agrees with the Inspector’s analysis.

As
with each of the citations, the entire transcript was reviewed by the Court. The
absence of specific comment to every point raised, either on direct or
cross-examination, does not suggest to the contrary, but rather reflects that
many points were made repeatedly for like violations and in other instances the
Court made the judgment that a point did not rise to a level that warranted
comment. Though multiple attempts were made to suggest that the miner was not
actually mining but merely set up to mine, the Inspector was adamant that they
were mining. See, Tr. 1941, 1943, among other examples on this point. The Court
finds the Inspector entirely credible on this issue.

In
its defense for this matter, Brody called Joshua Anderson, the section foreman
to whom the citation was issued. Mr. Anderson stated that the citation was
issued on the No. 1 section. The Inspector either was in front of or behind him
that day as they traveled into the mine, but the Inspector arrived at the face
before he did. Tr. 1955. Anderson maintained that there was no mining going on,
no cutting coal at that time at the number 2 entry. Tr. 1955-1956.

“Preop”
activities were going on, not mining. He had not yet taken an air reading. Tr.
1958. The preshift report dealing with the time just before this citation
reflected no problems including no problems with the ventilation, nor any
methane problems. Tr. 1959-1960. Anderson also completed the on-shift report
for that time, and he stated that it reflects there was no mining going on in
the No. 2 entry. He acknowledged that the continuous miner was set up there. Tr.
1961. The miner had power on the cable but he maintained that it was not
running at that time. Tr. 1962. Anderson offered that while the miner was set
to go, his explanation as to why they didn’t mine in the number 2 entry, as
follows: “I think one reason might have been the kettle bottom we observed on
the on-shift exam -- or just the general examination of the area. And

No.
1 was -- it's more of a -- it's easier to get your ventilation in No. 1 entry. There's
less chance of taking down a back-up curtain. It's a lot easier to get
ventilation in No. 1.” Tr. 1963.

During
cross-examination by the Secretary, Mr. Anderson continued to state that no
mining had been done in the No. 2 entry since the face had not been cut. Tr.
1974. However at the time the Inspector was taking his air reading, Anderson
deenergized the miner. When asked why he would do that, if there was no mining,
he stated that it eliminates any hazard with no power on the machine. Tr. 1975.
He did not dispute the Inspector’s reading, only the assertion that they were
mining. He also contended that because of the kettle bottom, the continuous
miner would not have been operating until after that was supported. Tr. 1978. Mr.
Anderson did not aid his credibility however when he asserted that the minimum
amount of air to safely dilute methane was excessive in that he believed that
6648 cfm was sufficient and in fact that 5,000 would be enough as well. Tr.
1980-1981. Asked if agreed with the mine’s ventilation plan, he answered
plainly, “No.” Tr. 1981.

This
citation presented a two-pronged S&S claim of safety and health. The
cross-exam was ineffective. The fact that dust sampling did not show a
violation does not refute the S&S nature of this violation. MSHA’s central
contentions here was that the low air, the ongoing work of the continuous
miner, and the extremely gassy nature of this mine, establish the violation’s S&S
nature. I credit the Inspector’s version of the events due in part to the Court’s
assessment of his credibility and certainty of his recollections, when
contrasted with the Court’s evaluation of the conflicting testimony.

The
proposed assessment for this violation was $8,893.00 and the Court, upon
application of the statutory criteria to the record evidence, concludes that
amount remains appropriate and is so imposed.

Citation
3577965 from Docket No. WEVA 2014-620

This matter,
noted in Gov. Ex. 45A, was settled. Brody accepts the citation, as issued,
including the S&S finding and the full amount of the proposed penalty. Tr.
1991.

Citation
3578036 from Docket No. WEVA 2014-620

This
matter, noted in Gov. Ex. 46A, was settled. Brody accepts the citation, as
issued, including the S&S finding and the full amount of the proposed
penalty. Tr. 1992.

CONCLUSION

The
matters in this litigation having been addressed, the foregoing constitutes the
Court’s decision. So Ordered.

/s/ William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Michael T. Cimino, Esq., Jackson
Kelly, PLLC, 500 Lee Street East, Suite 1600, Charleston, WV 25301-3202

R. Henry Moore, Esq., Jackson
Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty Avenue, Pittsburgh,
PA 15222

K. Brad Oakley, Esq., Jackson Kelly
PLLC, 175 East Main Street, Suite 500, Lexington, KY 40507

Adam J. Schwendeman, Esq., 500 Lee
Street East, Suite 1600, Charleston, WV 25301-3202

Benjamin M. McFarland, Esq.,
Jackson Kelly, PLLC, 1144 Market Street, Wheeling, WV 26003

Robert S. Wilson, Esq., Office of
the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22 Floor West,
Arlington, VA 22209-3939

Lauren Marino, Esq. Office of the
Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room 2226, Arlington,
VA 22209-2296

Jason Grover, Esq., Office of the
Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room 2226, Arlington,
VA 22209-2296

Ronald Gurka, Esq., Office of the
Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room 2226, Arlington,
VA 22209-2296

Dana Ferguson, Esq., Office of the
Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room 2226, Arlington,
VA 22209-2296

APPENDIX I

STIPULATIONS

The
parties entered into the following stipulations at the hearing:

Brody
Mining, LLC (hereinafter “Brody”) is an "operator" as defined in
§ 3(d) of the Federal Mine Safety and Health Act of 1977, as amended
(hereinafter "the Mine Act"), 30 U.S.C. § 803(d), at the coal
mine at which the Citations/Orders at issue in these proceedings were
issued.

The
Brody Mine No. 1, an underground bituminous coal mine at which the
Citations/Orders were issued in this proceeding, is subject to the
jurisdiction of the Mine Act.

This
proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated Administrative Law Judges pursuant
to Sections 105 and 113 of the Mine Act.

The
individuals whose signatures appear in Block 22 of the Citations/Orders at
issue in these proceedings were acting in their official capacity and as
authorized representatives of the Secretary of Labor when the
Citations/Orders were issued.

True
copies of the Citations/Orders at issue in this proceeding were served on
Brody as required by the Mine Act.

A
written notice was issued under Notice No. 7219154 on October 24, 2013,
pursuant to section 104(e)(1) of the Act, 30 U.S.C. § 814(e), notifying
the operator that MSHA finds that a pattern of violations exists at the
Brody Mine No. 1.

Under
the heading and caption “Condition or Practice” the Notice alleges in
relevant part as follows:

Pursuant to
Section 104(e)(1) of the Federal Mine Safety and Health Act of 1977 (Mine Act),
you are hereby notified that a pattern of violations exists at the Brody Mine
No. 1 (ID 46-09086). A review of the S&S violations cited at the mine
demonstrates a pattern of violations. As illustrative of this pattern of
violations, the following groups of violations are representative of violations
which are of such nature as could have significantly and substantially
contributed to the cause and effect of coal or other mine health or safety
hazards:

The following
eighteen citations/orders were issued citing conditions and/or practices that
contribute to ventilation and/or methane hazards: 8125045 (10/9/12), 8137713
(10/9/2012), 8146352 (10/9/2012), 7167400 (11/26/12), 7168841 (11/26/2012),
7168866 (1/14/2013), 8139621 (1/15/2013), 7168913 (2/13/2013), 3577965
(2/2/7/2013), 3578036 (5/15/2013), 8155954 (5/21/2013), 8155960 (5/29/2013),
8154782 (6/5/2013), 9000282 (6/10/2013), 7165682 (7/24/2013), 9000311
(7/30/2013), 9000312 (7/30/2013), 9002292 (8/27/2013).

The following
twenty citations/orders were issued citing conditions and/or practices that
contribute to emergency preparedness and escapeway hazards: 8153617
(10/9/2012), 7167386 (10/22/2012), 7167387 (10/23/2012), 7167388 (10/29/2012),
7167389 (10/29/2012), 7167393 (11/1/2012), 7167405 (12/4/2012), 7167412
(12/12/2012), 7168854 (12/17/2012), 7167474 (3/18/2013), 8155914 (4/8/2013),
9000286 (6/19/2013), 7165680 (7/17/2013), 9000305 (7/24/2013), 9000309
(7/29/2013), 9000313 (7/30/2013), 7165694 (8/14/2013), 7166781 (10/3/2013),
7166783 (10/8/2013), 7166784 (10/8/2013).

The following
nine citations/orders were issued citing conditions and/or practices that
contribute to roof and rib hazards: 8151320 (10/18/2012), 7168899 (2/5/2013),
7167471 (3/6/2013), 8155908 (4/4/2013), 8155925 (4/17/2013), 8155936
(5/6/2013), 9000277 (6/5/2013), 7165683 (7/24/2013), 9000307 (7/29/2013).

The following
seven citations/orders were issued citing conditions and/or practices that
contribute to inadequate examinations: 7168801 (10/18/2012), 7167473
(3/18/2013), 8155909 (4/4/2013), 8155926 (4/17/2013), 8155937 (5/6/2013),
9000278 (6/5/2013), 9000304 (7/24/2013).

These groups of
violations, taken alone or together, constitute a pattern of violations of
mandatory health and safety standards in the coal or other mine which are of
such nature as could have significantly and substantially contributed to the
cause and effect of coal or other mine health or safety hazards. [The Court
points out that the reader should not be confused by this stipulation as it
only recounts what the Notice alleges.]

If upon any
inspection within 90 days after issuance of this Notice, an Authorized
Representative of the Secretary finds any violation of a mandatory health or
safety standard that could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard, the
Authorized Representative shall issue an order requiring the operator to cause
all persons in the area affected by such violation, except those persons
referred to in Section 104(c) of the Mine Act, to be withdrawn from, and to be
prohibited from entering such area until an Authorized Representative of the
Secretary determines that such violation has been abated. This Notice of
Pattern of Violation shall remain posted at the Brody Mine No. 1 until it is
terminated by an Authorized Representative.

Citation
No. 7166783, listed in POV Notice 7219154, was vacated by MSHA subsequent
to the issuance of the POV Notice.

Citation
No. 7166784, listed in POV Notice 7219154, was vacated by MSHA subsequent
to the issuance of the POV Notice.

The
regulations on which MSHA relies to issue the notice of pattern of
violations became final on March 25, 2013. See Fed. Reg. § 5056 (January
23, 2013).

The
POV rule relies upon issued citations/orders regardless of whether they
are final orders of the Commission as a basis for determination of the
existence of a pattern of violations.

MSHA
based its POV determination on a 12-month period ending August 31, 2013.

The
parties disagree as to the effect of MSHA’s screening criteria set forth
on MSHA’s website. Brody believes the effect is that, absent mitigating
circumstances, a mine that meets the screening criteria is placed on a
pattern of violations. The Secretary, who wrote the rule, submits that
such criteria are used to screen mines and identify mines that will be
more closely reviewed for the determination of whether a pattern of
violations exists.

In
keeping with the rule, the screening criteria were not subjected to notice-and-comment
procedures. The parties disagree as to whether such notice-and- comment
procedures were required by the Administrative Procedure Act.

253
S&S citations/orders were issued to Brody Mine No. 1 over the course
of 12 months from September 1, 2012 through August 31, 2013. 108 S&S
citations/orders were issued between March 25, 2013 and August 31, 2013.

The
rate of S&S issuances at the Brody Mine No. 1 was 8.41 per 100
inspection hours during the screening period.

None
of the S&S citations/orders that were issued at the Brody Mine No. 1
during the screening period are final orders of the Commission.

Each
of the citations/orders listed in POV Notice 7219154 have been contested
by Brody.

24
citations/orders referenced in the pattern notice were issued before March
25, 2013. 28 citations/orders referenced in the pattern notice were issued
after March 25, 2013.

16
of the citations were referenced in the pattern notice were issued before
January 1, 2013.

Brody
contends that if the citations referenced in the pattern notice at issue
only involve those issued after March 25, 2013, the number of S&S
citations per 100 inspection hour would be below the 8.0 S&S per
100-hour criteria. The Secretary contends that the application of the
screening criteria is not subject to review and Brody contends that it is.
The Secretary further contends that the screening criteria are designed to
apply to a twelve month period and applying those criteria to a shorter
time frame would not be as representative. It is further the Secretary’s
position that all S&S citations/orders issued during the period under
consideration, not just those listed in the pattern notice, must be
considered when applying the screening criteria. It is Brody’s contention
that based on the Secretary’s arguments in this matter that he is arguing
that the citations /orders in the pattern notice establish a pattern of
violations.

108
S&S citations or orders were issued to Brody Mine No. 1 between March
25, 2013 and August 31, 2013 with a total of approximately 1468.75 MSHA
inspection hours as calculated by MSHA (1506 by Brody’s records). The
S&S rate using MSHA’s number for that period would be 7.35 per 100
inspection hours and 7.17 by Brody’s calculation.

12
citations/orders designated as S&S with a negligence finding of high
or reckless disregard were issued between March 25, 2013 and August 31,
2013 representing 11% of the 108 S&S citations/orders issued during
that period.

According
to MSHA’s sampling, the Brody Mine liberates in excess of 1,000,000 cubic
feet of methane per 24-hour period during the time frame from September 1,
2012 through August 31, 2013 and was on a 5-day spot inspection cycle
pursuant to Section 103(i) of the Mine Act.

Joint
Exhibit J-1is an accurate mine map of the Brody No. 1 Mine as of July 31,
2013.

Government
Exhibit 1-A is an authentic copy of Citation No.
8153617,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 8153617 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 2-A is an authentic copy of Citation No.
7167386,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7167386 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 3-A is an authentic copy of Citation No.
7167387,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 4-A is an authentic copy of Citation No.
7167388,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7167388 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 5-A is an authentic copy of Citation No.
7167389,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7167389 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 6-A is an authentic copy of Citation No.
7167393,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7167393 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 7-A is an authentic copy of Citation No.
7167405,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7167405 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 8-A is an authentic copy of Citation No. 7167412, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

The
Government stipulates that Citation No. 7167412 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 9-A is an authentic copy of Citation No. 7168854, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7168854 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 10-A is an authentic copy of Citation No. 7167474, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

The
Government stipulates that Citation No. 7167474 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 11-A is an authentic copy of Citation No. 8155914, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 12-A is an authentic copy of Citation No. 9000286, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 9000286.

Government
Exhibit 13-A is an authentic copy of Citation No. 7165680, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 7165680.

Government
Exhibit 14-A is an authentic copy of Order No. 9000305, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 9000305.

Government
Exhibit 15-A is an authentic copy of Citation No. 9000309, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 9000309 but contests
that the violation was properly designated as significant and substantial.

The
Government stipulates that Citation No. 9000309 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154 issued on October 24,
2013.

Government
Exhibit 16-A is an authentic copy of Citation No. 9000313, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of violation cited in Citation No. 9000313 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 17-A is an authentic copy of Citation No. 7165694, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 18-A is an authentic copy of Citation No. 7166781, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7166781 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 19-A is an authentic copy of Citation No.
8151320,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 8151320.

Government
Exhibit 20-A is an authentic copy of Citation No.
7168801,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 7168801.

Government
Exhibit 21-A is an authentic copy of Citation No.
7168899,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 7168899.

Government
Exhibit 22-A is an authentic copy of Citation No. 7167471, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of establishing
the accuracy of any statements asserted therein.

Government
Exhibit 23-A is an authentic copy of Citation No. 7167473, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

The
Government stipulates that Citation No. 7167473 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 24-A is an authentic copy of Citation No. 7165683, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 25-A is an authentic copy of Order No. 8155908, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 26-A is an authentic copy of Citation No. 8155909, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 27-A is an authentic copy of Citation No. 8155925, with all
modifications and abatements, and may be admitted into evidence for the purpose
of establishing its issuance and not for the purpose of establishing the
accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 8155925 but contests
that the violation was properly designated as significant and substantial.

The
Government stipulates that Citation No. 8155925 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154 issued on October 24,
2013.

Government
Exhibit 28-A is an authentic copy of Citation No.
8155926,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

The
Government stipulates that Citation No. 8155926 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 29-A is an authentic copy of Citation No.
8155936,
with all modifications and abatements, and may be admitted into evidence
for the purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 8155936 but contests
that the violation was properly designated as significant and substantial.

The
Government stipulates that Citation No. 8155936 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 30-A is an authentic copy of Citation No. 8155937, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

The
Government stipulates that Citation No. 8155937 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 31-A is an authentic copy of Citation No. 9000277, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 9000277.

Government
Exhibit 32-A is an authentic copy of Citation No. 9000278, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 33-A is an authentic copy of Citation No. 9000278, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 9000278.

Government
Exhibit 34-A is an authentic copy of Order No. 9000307, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 35-A is an authentic copy of Citation No. 8125045, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 8125045 but contests
that the violation was properly designated as significant and substantial.

The
Government stipulates that Citation No. 8125045 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 36-A is an authentic copy of Citation No. 8139621, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

The
Government stipulates that Citation No. 8139621 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 37-A is an authentic copy of Citation No. 8154782, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 38-A is an authentic copy of Citation No. 8146352, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 8146352 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 39-A is an authentic copy of Citation No. 7167400, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7167400 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 40-A is an authentic copy of Citation No. 8137713, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 41-A is an authentic copy of Citation No. 7165682, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7165682 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 42-A is an authentic copy of Citation No. 7168841, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7168841 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 43-A is an authentic copy of Citation No. 7168866, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 7168866 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 44-A is an authentic copy of Citation No.7168913, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 45-A is an authentic copy of Citation No. 3577965, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 3577965.

Government
Exhibit 46-A is an authentic copy of Citation No. 3578036, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 3578036.

Government
Exhibit 47-A is an authentic copy of Order No. 8155954, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 8155954 but contests
that the violation was properly designated as significant and substantial.

Government
Exhibit 48-A is an authentic copy of Order No. 8155960, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Government
Exhibit 49-A is an authentic copy of Citation No. 9000282, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

Brody
admits the fact of the violation cited in citation 9000282 but contests
that the violation was properly designated as significant and substantial.

The
Government stipulates that Citation No. 9000282 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 50-A is an authentic copy of Citation No. 9000311, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of establishing
the accuracy of any statements asserted therein.

Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 9000311.

Government
Exhibit 51-A is an authentic copy of Citation No. 9000312, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of
establishing the accuracy of any statements asserted therein.

117.     Brody
stipulates that it will accept the significant and substantial designation
for Citation No. 9000312.

Government
Exhibit 52-A is an authentic copy of Citation No. 9002292, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of establishing
the accuracy of any statements asserted therein.

The
Government stipulates that Citation No. 9002292 should be modified to
non-significant and substantial and hereby withdraws that citation from
its Notice of Pattern of Violations, Notice 7219154, issued on October 24,
2013.

Government
Exhibit 53 is an authentic copy of the POV Notice issued to the operator
on October 24, 2013, which may be admitted into evidence for the purpose
of establishing its issuance and not for the accuracy of any statements
asserted therein.

Each
of the alleged violations involved in this matter were timely abated in
good faith.

124.           Brody accepts the
negligence, injury/illness, and number of persons affected designations on the
twelve (12) citations listed herein that the Government has stipulated were
improperly designated as significant and substantial. Likewise, Brody accepts
the negligence, injury/illness, and number of persons affected designations on
the twelve citations listed herein that Brody has stipulated were properly
designated as significant and substantial.

125.           For those citations
listed herein that the Government has stipulated were improperly designated as
significant and substantial, Brody will pay a penalty commensurate with the
penalty amount prescribed under Part 100 given the deletion of the significant
and substantial designation.

126.           For those citations
listed herein that Brody has stipulated were properly issued as significant and
substantial, with the exception of Citation Nos. 9000305, 9000277 and 9000278,
Brody will pay the assessed penalty.

127.           Brody will pay a
$43,086 penalty for Citation No. 9000305.

128.           Brody will pay a
$52,913 penalty for Citation No. 9000277.

129.           Brody will pay a
$14,993 penalty for Citation No. 9000278.

[1] While this case
has been before the Commission, MSHA has issued numerous section 104(e)
withdrawal orders pursuant to Pattern of Violations Notice No. 7219154. Brody
has contested each of the orders. As Chief Judge Lesnick noted in his Order
dated January 30, 2014, all such notices of contest have been consolidated in
this proceeding.

[2] 30 C.F.R. §
104.2 provides:

Pattern criteria.

(a) At least once each year, MSHA will
review the compliance and accident, injury, and illness records of mines to
determine if any mines meet the pattern of violations criteria. MSHA's review
to identify mines with a pattern of S&S violations will include:

(1) Citations for S&S violations;

(2) Orders under section 104(b) of the Mine Act for not abating S&S
violations;

(3) Citations and withdrawal orders under section 104(d) of the Mine Act,
resulting from the mine operator's unwarrantable failure to comply;

(4) Imminent danger orders under section 107(a) of the Mine Act;

(5) Orders under section 104(g) of the Mine Act requiring withdrawal of
miners who have not received training and who MSHA declares to be a hazard to
themselves and others;

(6) Enforcement measures, other than section 104(e) of the Mine Act, that
have been applied at the mine;

(7) Other information that demonstrates a serious safety or health management
problem at the mine, such as accident, injury, and illness records; and

(8) Mitigating circumstances.

(b) MSHA will post the specific pattern criteria on its Web site.

[3] The Court also
directed the Secretary to identify, at the beginning of the September 23, 2014,
hearing, his definition of a pattern and especially as to the 54 citations in
this case, advising that the pattern notice would be dismissed if the Secretary
failed to provide that information. When the hearing commenced on September 23,
2014, the Secretary spoke only in generalities, reiterating that a pattern of
violations could be as few as two citations, citing the same cases as in his
Response to Brody’s Motion in Limine. Tr. 44-45. The Secretary did not address
how the 40 citations that remained of those identified in the notice of pattern
of violations constituted a pattern of violations or how Brody could defeat
such designation. Tr. 45-48. Instead the Secretary indicated that a
determination of a pattern could not be made until the Court determined which
citations were properly designated S&S and upon such determinations, it
would then be up to the Court to determine whether those constituted a pattern.
Tr. 49-50.

[4] This did not
mean that the hearing was cancelled. The Court directed that the hearing would
proceed as scheduled so that the 54 citations/orders comprising the
basis for the pattern notice would be heard. This decision was made for
purposes of efficiency and the promise that challenges to pattern charges would
be promptly heard. By hearing the evidence for the underlying alleged violations
and determining which of those were established as violations in fact and by
further determining which among those were also significant and substantial
(“S&S”), the Commission, if it were to disagree with the Court’s decision
to dismiss the pattern notice, would have all the information before it to
determine if those established S&S violations constituted a pattern of
violations under 30 U.S.C. § 814(e). Therefore, over a period of three weeks,
the evidence relating to the 54 alleged violations was heard by the Court. The
Court’s findings relating to those 54 matters are contained in this decision.

[5] The Court
reiterated its view that the government made a fatal flaw in proceeding without
informing Brody of the basis for its pattern charge and that such an approach
is fundamentally unfair on due process grounds. This failure was compounded by
not only failing to announce its basis prehearing but also by asserting that,
even post-hearing, it would not express the grounds. Instead the Secretary
asserted that it would wait until after the Court ruled on which
violations were proven and were S&S. Tr. 439-442.

[6] Brody notes, by
comparison:

In other proceedings before the
Commission, an operator knows what the Secretary needs to prove to prevail. The
words of the specific standard or regulation cited in the citation or order
sets out what the Secretary must prove. Here, nothing sets out what the
Secretary must prove or intends to prove. The promulgated regulation is not
specific and is general in nature. . . . The Secretary has offered no
indication of the criteria for a pattern that the Administrator of Coal Mine
Safety and Health applied once Brody purportedly met MSHA’s published criteria [nor
offered] specific information, other than generalities, as to why he believes
the remaining 40 citations form a pattern. No party subject to regulation
should be required to go to hearing without a clear understanding of what the
government must prove to prevail.

Brody
Mem. at 10-11.

[7] Other cases
were also cited by Brody: Connecticut v. Doehr, 501 U.S. 1 (1991) (state
ex parte attachment procedures); Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1 (1978) (termination of municipal utility service); N.
Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) (prejudgment
garnishment of bank account); Fuentes v. Shevin, 407 U.S. at 67 (1972)
(state prejudgment replevin statutes); Sniadach v. Family Finance Corp. of
Bay View, 395 U.S. at 337 (1969) (state wage-garnishment procedure).

[8] In what may be
considered a useful comparison, in Wolf Run Mining Co., 32 FMSHRC 1669
(Dec. 2010), the Commission considered the meaning of the term “exposed,” and
whether ambiguity of the term violated due process. There it recognized that
“[a]n agency’s interpretation may be permissible but nevertheless may fail to
provide the notice required to support imposition of a civil penalty.” Id.
at 1681. In applying the reasonably prudent person test, the Commission stated
that a “wide variety of factors is relevant, including . . . whether MSHA has
published noticed informing the regulated community with ascertainable
certainty of its interpretation of the standard in question. Id. (citations
omitted). Also, as noted above and illustrative of this duty to provide notice,
in General Electric Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 1995),
the Court of Appeals found that the EPA did not provide G.E. with fair notice
because the regulations and other policy statements were unclear, and where the
agency itself struggles to provide a definitive reading of the regulatory
requirements, a regulated party is not ‘on notice’ of the agency's ultimate
interpretation of the regulations, and may not be punished.

[9]
The
parties entered into a number of stipulations. These appear in Appendix I of
this decision. It is also noted that the listed dockets includes citations that
are non-pattern related. A motion to sever those non-pattern related citations
was suggested. For example, regarding Docket No. WEVA 2013-997, that docket
contains citations in it which are not part of the POV notice. The Court
concluded that severing those citations and creating a separate docket would
create a potential for additional confusion and therefor it rejected the
suggestion to sever those. The Secretary was directed to provide a list of all
those non-POV matters. Tr. 826-827. Finally, without objection, the violation
history for each of the contested violations was admitted. Tr. 828-830. Gov.
Exhibits 25 C, 26 C, 33 C and 34 C.

[10]
This is an
appropriate point to take note that all of the witnesses in these proceedings
have a significant mining experience background.  

[11]
A point of
clarification, the cited violation was not for failing to “examine” the
escapeway, but rather for failing to travel it. Tr. 121.

[12]
One should
not conflate the primary escapeway with the alternate. The former is isolated
and a fresh air intake. The latter, in contrast, has belt transformers, pumps
and high-volt cable in it. Tr. 150-151. Besides, the standard’s requirement
pertains to the primary escapeway.

[13]
In fact,
the Court noted that, in its estimation, Halstead’s recent employment at the
mine heightened the importance of compliance with the standard. Tr. 166.

[14]
Browning
admitted that, for reflectors, in a smoke-filled atmosphere, one would have to
be close to them. Otherwise, in those conditions, one wouldn’t see them. Tr.
184.

[15]
However,
it is noted by the Court that Browning had earlier conceded that smoky
conditions impacted such markings.

[16]
Mr. Kevin
Webb also was presented to testify for the Respondent on this matter, but his
testimony was only about a subsequent event, the following year, involving a similar
violation, but for which MSHA did not mark it as S&S. The Court, upon
objection by the Secretary, ruled that the proposed testimony was not material
and not relevant and therefore could not be presented. To preserve the issue
and the Court’s adverse ruling against the Respondent, an offer of proof was
permitted. Tr. 192-194.

[17]
Note: This
exhibit is out of order in the Respondent’s exhibit notebook and therefore may
be hard to locate. It is numbered however, as R 26.

[18]
It is
noted that the contention that there was a space is at odds with Brody’s excuse
that there used to be a branch line there.  If in fact that was the case, the
cones would not have been spaced. Also, as stated by the Inspector, in
response to a question from the Court, these cones stay put. That is,
they are locked in place on the line. Tr. 300.

[19]
In this
regard, with Mr. Gibson noting that there were SCSRs some 10 to 11 breaks inby
of the cited location, he agree that was over 1,000 feet away. Tr. 333. Gibson
also backed away from the usefulness of maps in an emergency situation with a
smoke-filled environment. Tr. 334. Thus, he conceded that the cones, as tactile
indicators notify miners of where life-saving materials are located along a
lifeline and that coming upon such cones, a miner will be looking for the
branch line to SCSRs. Tr. 334-335.

[20]
This is an
opportune moment to note that the Court reviewed the transcript carefully and
considered all contentions made in connection with this case. That a particular
contention may not be expressly this decision does not mean that it was not
considered. Instead it indicates that the Court decided that it was unnecessary
to speak to some matters.

[21]
A life
shelter, also referred to as “refuge alternative,” is a large life-saving piece
of equipment, which contains oxygen, food, carbon dioxide scrubbers to scrub
out exhaled carbon dioxide, and water, all sufficient to sustain workers’ lives
for a minimum of 96 hours. Tr. 558.

[22]
Remaining
troubled by the remark in the Inspector’s notes, the Court later revisited the
matter.

[23]
The Court
revisited this rather troubling revelation when the hearing resumed the
following week, on September 29th. The Secretary again objected on
the basis that it was not relevant to the issue of bias. As the Court patiently
explained the week before, the subject was very legitimately an area for
exploration of witness bias as a well-recognized area of cross-examination. The
Court believes that it was the harmful nature of the testimony which motivated
the Secretary to attempt to keep it out of the record.  The Court began by
directing Inspector Hatfield to Ex. R 9B, expressing that, while it considered
the Inspector to be a decent man, it nevertheless considered having a judge’s
name on his hat to be an example of bad judgment. The Court acknowledged that
the Inspector was no doubt dedicated to his work but that he and all mine
inspectors still have an obligation to be objective in carrying out their
duties and not become zealots. Moving to the question which caused the Court to
raise the matter again, it directed the Inspector to his notes where he wrote
“i.e. erotica.” The Inspector stated that he was not referring to a person from
his office but rather to a CLR, explaining, “[s]he has an odd spelling for her
name.” Tr. 1002. The Court then asked for the name of the CLR he was alluding
to. The Inspector then retreated from the claim about the odd spelling for the
CLR’s name and instead stated “[t]hat’s a nickname I gave her myself, sir.” Tr.
1003. He offered that the CLR’s name was spelled something like HROVOTIC.” The
Inspector could not offer why he so nicknamed the CLR. Tr. 1004.

[24]
It was
also noted without contradiction that Inspector Hatfield issued approximately
half of the citations in the pattern notice litigated in this proceeding. Tr.
598.

[25]
The
Inspector began his testimony with the first day of his E01 inspection at the
mine, which was about July 17, 2013, a date two weeks before the citation to be
discussed. An objection, on materiality grounds, was made. The Secretary
advised that the testimony was offered as “go[ing] to the larger issue [ ] of
pattern.” Tr. 653. The objection was sustained with the Secretary directed to
focus on the particular citation. The Secretary then asserted that it wanted
the testimony of the earlier meeting for the purpose of establishing negligence
associated with Citation No. 9000313. Tr. 655.  A single question was permitted
as to whether the individual to whom the citation was served was present on
July 17, 2013 and advised by Inspector Hatfield about the S&S nature of
violations of 30 C.F.R. §75.1504(a)(2). The Inspector stated that the
individual was not present, ending that line of questioning. Tr. 656. Subsequently,
Ex 14B, which was offered but, per the Court’s ruling not admitted, was
included in the record, in a separate envelope, for purposes of appeal only. Tr.
689.

[26]
There is
no need to precisely determine the distance not traveled. Whatever its exact
length, it was significant, not inconsequential. Tr. 669-670.

[27]
The Court
observes that this was no more than another variant of the theme that other
safety procedures operate to diminish the S&S characterization and it too
is rejected as an inappropriate consideration in that analysis. In the same
vein, the existence of multi-gas detectors and maps showing the location of
SCSRs and the refuge chamber was raised. Tr. 685-687.

[28]
The Court
did have an inquiry, perhaps misplaced, about the applicability of the
standard, because it requires that lifelines be located in such a manner to use
effectively to escape, but that the Inspector did not require that the lifeline
be relocated. Tr. 728. The Inspector believed that it remained the applicable
standard to cite in such circumstances. Tr. 729.

[29]
One such
example is that as the roadway was essentially straight, it was claimed that
miners in an emergency would keep going in the correct direction despite the
misinformation.

[30]
These
matters were addressed during the second week of hearings with all matters for
this group heard on September 29, 2014.

[31]
Later,
Counsel for Brody explained that had the violation been cited as a 75.220
violation, it may have conceded the violation, while still challenging the
special findings. However, as section 75.202 was cited, they challenged the
violation itself. Tr. 883. On that basis it believed there is case law to
support the view that there is no violation where the evidence establishes that
the roof is stable. Tr. 883-884.

[32]
The
cross-examination point being that problems with 4 cribs in an area with 80
cribs is a small number of problematic cribs. Tr. 979-980.

[33]
The
Inspector denied telling Mr. Webb that he had indeed seen the conditions the
previous day and wanted to see if the mine would notice them. Tr. 988.

[34]
Although photographs,
taken by Mr. Webb, per Exhibit R 15C were introduced, showing some of the cribs
along the 4B belt line, they were not admitted into the record because they
were taken only two months before the hearing and consequently long after the
citations involved here were issued. Tr. 1023.

[35]
Settled Order
No. 9000278, issued June 5, 2013, states: “[a]n inadequate preshift examination
has been conducted and recorded in a book for that purpose on the 3 Section
Panel.  The approved roof control plan is found on this day not being followed
on the 3 Section Panel. The bolt spacing for installed primary support (6´
resin rods and 6´ torque tension rods) and supplemental roof support (10´cable
bolts) is not as required. Numerous areas measured greater than the 36” with
cable bolts installed in the intersections or the cable bolts being installed
further than every other row of roof bolts. The mine roof on this section is
found broken laminated slate and sandstone with a coal rider seam within 7´. This
area, although not a high stress area, is West of Pond Fork with a coal rider
seam present contributing to a hazardous roof condition. This examination is
conducted by an agent of the operator is exhibited by the record.

[36]
A brow is
part of coal or rock that has broken from the coal pillar. It is loose, but
self-supporting, standing by itself. Tr. 1069.

[37]
The
Secretary explained the basis for the penalty reduction: MR. WILSON: Yes, your
Honor. The standard cited requires that refuge alternatives be maint[ained]
within 1,000 feet of the face or areas where mechanized equipment are being
installed. The section was moving from one location to another. They hadn't
started production yet. So the company would argue that those were mitigating
circumstances. Taking that into account, taking into account that the company has
agreed to accept the violation as issue including the S&S finding, we've
agreed to the modest penalty reduction.

THE
COURT: Okay. And -- and this is not giving you a poke -- maybe a little. I
would just note on the record how easy that was for the [S]ecretary to provide
the court with the information that is required under the statute. It was not onerous,
as I read in some filings in other matters. Very easy to provide the minimal
information, as opposed to just saying, we've looked at this [Federal Mine
Review] [C]ommission and it's good. Now it's your [i.e. the Commission’s] job
to bring out the stamp. Okay? So that -- I don't want to -- I don't want you to
offer a rebuttal to that.

MR.
WILSON: I wasn't planning on it.

THE
COURT: And I just wanted to note for the record, it took you less than 30
seconds to

justify
the reasons for the reduction. Tr. 645-646.

[38]
At the
outset of the third week, the Court ruled on Brody’s Motion to enforcement a
claimed settlement, pertaining to matters in this litigation, denying the
Motion. The reasons for the denial are set forth at transcript pages 1155-1156.

[39]
Although
not directly part of this Order but worth noting, the Inspector issued another
citation at the same time because the methane gas detector used by the
continuous miner equipment operator wasn’t functioning properly, to the point
that it was useless. That methane detector is apart from the detector on the
continuous miner itself. Such readings are done within 5 feet of the face and
must be done every 20 minutes. Tr. 1211-1213. Gov. Ex. 37 D. Thus, methane is
such a concern, with its potential for an explosion, that backup measurements,
such as this are required to be taken.

[40]
Inspector
Workman noted that the continuous miner operator does his job remotely. He is
not physically on the continuous miner. However, as he is standing apart from
the machine he is remotely operating, he is subject to being struck by other
equipment, such as the shuttle car operator, a risk heightened by the dust
reducing the visibility. It is fair to state that the dust impaired the
visibility but that there was not a complete impairment; one could from 20 feet
away, at least make out the presence of things at that distance. The
Inspector’s analogy to fog was reasonable. Tr. 1240-1241. Importantly, one must
remember that, in a coal mine such as this, visibility is not great to start. It
is limited under the best of circumstances. The dust, when struck by a cap lamp
or the light on machinery, also has a reflective effect and that too diminishes
visibility. Tr. 1242.

[41]
The Court
asked additional questions about this because it was concerned that if Brody
had no requirement to write the information about the air velocity and the mean
air velocity, it had no means to be sure that people were complying with the
requirement. Mr. Webb could only respond that it is part of such individuals
job duties to take those air measurements. Tr. 1627-1628.

[42]
During
additional testimony on redirect, Mr. Bourne explained the basis for his view
that the Inspector took his reading from an incorrect location in that it was
not taken at the established workplace. Tr. 1743-1746. Bourne’s position was
that the established workplace was the location where the rib bolt repair was
being done and that there was 4,000 cfm at that location.  Further
cross-examination, at Tr. 1746. The Secretary opted not to provide testimony in
rebuttal. Tr. 1748.

[43]
In fact,
the Court later commented openly and favorably about its view of Mr. Bourne’s
testimony, remarking that it found it both credible and honest. Tr. 1742.

[44]
In an
email response to this issue, dated October 16, 2014, the Court advised the
parties as follows: “Here is what the parties should know: I have, presently,
more than sufficient information to decide each of the contested matters. Absent
a “smoking gun” passage from the notes, and by that I mean to include a note
which is not capable of argument as to its meaning and effect, the whole
business of the notes will not impact my decisions. Pick any citation, as a
hypothetical example. To be considered beyond what I already have from the testimony
and exhibits, (again I am offering this as a hypothetical example) a note would
have to say something on the order of Brody saying “they got us on this one, as
it is clearly S&S” in order for me to reevaluate what I have. So, absent
something of that order, let’s not go down a “cul-de-sac” if you remember my
analogy using that term at the hearing.  Consistent with the above, and with
the briefs due as scheduled, I will give the Secretary until next Tuesday to,
as Attorney Moore suggested, “argue that specific notes should be added to the
record . . . then they should have to make a showing why any set of notes are
relevant.”  But again, I ask the Secretary to step back and make sure that in
the frenzy he is not engaging in what ultimately may be a waste of time and
effort.”